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m 

■ "^ h of Senator Robert M. La Follette 

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W6A5 

Copy 1 MEMORANDUM OF INFORMATION 

SUBMITTED TO THE 

m ON PRIVILEGES AND ELECTIONS 
UNITED STATES SENATE 

SIXTY-FIFTH CONGRESS 

SECOND SESSION 

RELATIVE TO THE 

RESOLUTIONS FROM THE MINNESOTA COMMISSION OF PUBLIC 

SAFETY PETITIONING FOR PROCEEDINGS LOOKING TO THE 

EXPULSION OF SENATOR ROBERT M. LA FOLLETTE, ON 

ACCOUNT OF A SPEECH DELIVERED BEFORE THE 

NONPARTISAN LEAGUE, AT ST. PAUL, MINN., 

ON SEPTEMBER 20, 1917 



Printed for the use of the Committee on Privileffea and Elections 






WASHINGTON 

GOVERNMENT PRINTINCJ OFFICE 

1918 



'J'Kl/9 7 



SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS. 

ATLEE POMERENE, Ohio, Chairman. 
THOMAS J. WALSH, Montana. WILLIAM P. DILLINGHAM, Vermont. 

OLLIE M. JAMES, Kentucky. ALBERT B. FALL, New Mexico. 

AsTHUB P. Blace^ Clerk. 



D. of D. 
^PR .22 1918 



CONTENTS. 



Page. 

Title I. — Excerpt from speech of Robert M. La Follette 5 

Title II. — Quotations fTom recent decisions under war statutes 7 

Title III. — Congressional precedents 55 

Title IV. — ^Treason defined 79 

3 



SPEECH OF SENATOR ROBERT M. U FOLLETTE. 



TITLE I. 



EXCERPT FROM SPEECH OF SENATOR ROBERT M. LA FOLLETTE, 
ALLEGED TO BE OF A DISLOYAL AND SEDITIOUS NATURE. 

The Committee on Privileges and Elections has before it the ques- 
tion of the petition of the Public Safety Commission of Minnesota for 
the expulsion of Senator Robert M. La FoUette. It will be unnec- 
essary to quote in this memorandum the entire speeech of Senator 
La Follette. The whole speech should be read, because undoubtedly 
the tenor of the speech tends to throw light upon the intent with 
which certain statements, which are challenged, were uttered. Among 
•other things the Senator, after stating that there was something 
wrong with our Government, said: 

There is something fundamentally wrong with it. [Cheers and applause.] 

Of course, of course, I know that the fellows who are waving the flags of to-day 
most frantically [laughter], the bloated representatives of wealth, who are shouting 
loudest for democracy to-day, are trying to invest this particular time with a new 
form of democracy [laughter, cheers, and applause]. 

A democracy that has attached to it as a cardinal principle not liberty, not equality, 
but profits. [Laughter, applause, and cheers.] 

And, my friends, you can not enlist the thinking, intellectual, conservative popu- 
lation found upon the farms of this section of the country, which was known when I 
was a boy as the old Northwest territory; you can not stir that population very deeply 
and very profoundly unless there is a profound reason for it. [Applause.] 

And that profound reason, if you will be a bit critical and a bit analytical, you will 
find is due to the fact thdt the very men who are shouting at the top of their voices 
about democracy to-day are the men who have been pillaging the hard-working sons 
of toil, not only upon the farms but in the factories of the country. [Cheers and 

applause.] 

******* 

Now, fellow citizens, we are in the midst of a war. For my own part, I was not in 
favor of beginning the war. [Cheers and applause.] 

I don't mean to say that we hadn't suffered grievasaces; we had [a voice: Yes] at 
the hands of Germany. Serious grievances [a voice: You bet]. 

We had cause for complamt. They had interfered with the right of American citi- 
zens to travel upon the high seas on ships loaded with munitions for Great Britain. 
[Laughter, cheers, and applause.] 

Let me have the time; I have got to catch a train — unless I am stopped by some- 
body [laughter], and I have never been stopped yet [laughter and applause]. 

Cut it out. Let me have the time. I would not be understood as saying that we 
didn't have grievances. We did. And upon those grievances, which I regarded as 
insufficient, considering the amount involved and the rights involved, which was the 
right to ship munitions to Great Britain with American passengers on board to secure 
a safe transit. [Laughter and applause.] 

We had a right, a technical right, to ship the munitions, and the American citizens 
have a technical right to ride on those vessels. I was not in fa^-or of the riding on 
them [laughter], because it seemed to me that the consequences resulting from any 
destruction of life that might occur would be so awful [A voice: Yellow.]. 

What did you say? [A voice: Yellow.] 

Any man who says that in an audience where he can conceal his identity is yellow 
himself. [Many cries: Put him outi Put him out!] 

5 



6 SPEECH OF SENATOR ROBEKT M. LA FOLLETTE. 

Sit down, everybody. I don't want any of that in an audience where I am speaking. 
[Cries of Order, order.] 

All I want is order. I will take care of everybody that interrupts if you will just 
give me the chance. [Cheers and applause.] 

I say this, that the comparatively small privilege of the right of an American citizen 
to ride on a munition-laden ship flying a foreign flag is too small to involve this Gov- 
ernment in the loss of millions and millions of lives. [Cheers and applause.] 

Now [A voice interrupting: Where is the yellow guy now? Another voice: Give it 
to him, La Follette. Order.] 

Now, fellow citizens, I didn't believe that we should have gone into this war for 
that poor privilege. [A voice: Nobody else.] 

The right of an American citizen to travel upon a foreign vessel loaded with mu- 
nitions of war. Because [another interruption]. 

Wait just a minute. Let me state my position. Because a foreign vessel loaded 
with munitions of war is technically foreign territory [cheers and applause], and an 
American citizen takes his life in liis own hands, just as much as he would if he were 
on the territory of France, and camped in the neighborhood of an ai'senal [cheers and 
applause] . 

Mr. President, it has sometimes occurred to me that the shippers of munitions of war, 
who were making enormous profits out of the business, invited and encouraged Ameri- 
can citizens to ride on those sliips, in order to give a sort of semblance of safety to the 
passage of their profiteering cargo abroad. [( heers and applause.] 

******* 

And, fellow citizens, it behooves a nation to consider well before it enters upon a 
war of that sort, how much it has got at stake. If all it has got at stake is the loans of 
the house of Morgan made to foreign Governments, and the profits that the munition 
makers will earn in shipping their products to foreign countries, then I think it ought 
to be weighed, not in a common hay scale, but in an apothecary's scale. [Laughter 
and applause.] 

Ah, but somebody will tell you, American rights are involved. 

"What American rights? The right of some person to ride upon a munition-laden 
vessel in violation of an American statute, that no vessel that carries explosives shall 
carry passengers. [Cheers and applause.] 

Four days before the Lusifania sailed President Wilson was warned in person by 
Secretary of State Bryan that the Lusitania had 6,000,000 rounds of ammunition on 
boai'd, besides explosives; and that the passengers who proposed to sail on that vessel 
were sailing in violation of a statute of this country ; that no passenger shall sail or travel 
upon a railroad train or upon a vessel which carries dangerous explosives. [Cheers and 
applause.] 

And Secretary Bryan appealed to President Wilson to stop passengers from sailing 
on the Lusitania. 

I am giving you some history that probably has not been given you here before. 
[Cheers.] 

So. I say that the grievances that carried this country into war, into a war the limits 
of which, as to the loss of life, and the burdens, financial burdens, that shall be laid 
upon us, can not be calculated by any man — I say that the conditions that carried us 
into that war needed to be weighed carefully, for they enunciate no new doctrine. I 
say what Daniel Webster said when the Mexican War was on at full tilt — that it is the 
right of the people of this country to determine for themselves whether there has 
been a sufficient grievance for the people to incur all of the burdens and risks that go 
with the entrance into war. 



TITLE II. 
QXrOTATIONS FROM RECENT DECISIONS UNDER WAR STATUTES. 

Without commenting upon the language at this time, various 
decisions of the United States district court, mostly rendered since 
the entry of this country into the war, will be cited together with 
sufficient quotations therefrom to give the committee the substance 
of the decisions. These decisions bear upon the question of the 
legality of the use of such language under the espionage act, passed 
by the last Congress. 

In the case of United States v. Pierce (245 Fed., 878), decided by 
Judge Ray, district judge of the United States District Court for the 
Northern District of New York, on November 7, 1917, the facts 
and the law are sufficiently set forth in the opinion, from which we 
quote at great length, because it seems to bear with particular em- 
phasis upon the language used by the Senator from Wisconsin. 
There is eliminated from this opinion certain clauses which to not 
bear upon the question here involved. With that exception, the 
opinion is given in full : 

At law. Clinton H. Pierce and others were indicted for conspiracy under Criminal 
Code (act Mar. 4, 1909, c. 321,) sec. 37, 35 Stat., 1096 (Comp. St., 1913, sec. 10201), and 
also violations of the s>called espionage act,. sees. 3 and 4. On demurrer. Demur- 
rer overruled. 

See, also, 245 Fed., 888. 

D. B. Lucey, United States attorney, of Ogdensburg, N. Y. 

Frederick A. Mohr, of Auburn, N. Y., for defendants. 

Ray, District Judge: Since April 6, 1917, the United States has been at war with 
the Imperial German Government, on which day the Congress of the United States 
by joint resolution duly approved stated: 

"That the state of war between the United States and the Impeiial German Govern- 
ment which has thus been thi'ust upon the United States is hereby formally declared," 
etc. 

May 18. 1917. Congress enacted what is commonly and popularly known as the 
selective-draft act (act May 18, 1917. c. 15). approved that day. This act provides for 
the increase of the Regular Army, the enlistment of men in the military service of the 
United States, and the drafting of men for the purpose. This was done to enable the 
United States to prosecute the war thus thrust upon us to a successful determination. 
June 15, 1917, Congress enacted what is commonly known as the espitnage act (act 
June 15, 1917, c. 30), approved that day, and which is entitled "An act to punish acts 
of interference with the foreign relations, the neutrality and the foreign commerce of 
the United States, to punish espionage and better to enforce the criminal laws of the 
United States, and for other piu"poses." Section 3 of this act reads as follows: 

"Whoever, when the United States is at war, shall willfully make or convey false 
repcrts or false statements with intent to interfere with the operation or success of 
the military or naval forces of the United States or to pr<miote the success of its enemies 
and whoever, when the United States is at war, shall willfully cause or attempt to 
cause insubordination, disloyalty, mutiny, or refusal of duty, in the military' or naval 
forces of the United States, or shall willfully obstruct the recruiting cr enlistment 
service of the United States, to the injury of the service or cf the United States, shall 
be pimished by a fine of not more than §10,000 or impriscnment for not more than 
twenty years, or both." 

[1] It is seen at a glance that whoever, when the United States is at war, willfully 
makes or conveys false reports or false statements with intent to interfere with the 



8 SPEECH OF SENATOE ROBERT M. LA FOLLETTE. 

operation or success of the military or naval forces of the United States, or to promote 
the success of its enemies, commits a crime against the United States. It is not 
necessary that the operation or success of the military or naval forces be actually 
interfered with, or that the success of its enemieg be actually prcmoted. The n-ating 
or conveyance of false reports or false Ftatements -with the intent to interfere with the 
operation or success of either the military or naval forces of the United States or to 
promote the success of the enemies of the United States is all-sufEcient. 

The defendants have extensively circulated and spread broadcast a printed pam- 
phlet or circular containing, with other things, the following: 

"Conscription is upon us; the draft law is a fact! 

"Into your homes the recruiting ofFcers are coming. They will take your eons of 
militaiy age and impress them into the Army. 

"Stand them up in long rows, break them into squads and platoons, teach them to 
deploy and wheel. 

"Guns will be put into their hands; they will be taught not to think, only to obey 
without questioning. 

"Then they will be shipped through the submarine zone by the hundreds of thousands 
to the bloody quagmire of Europe. 

"into that seething, heaving swamp of torn flesh and floating entrails they will be 
plunged, in regiments, divisions, and armies, screaming as they go. 

"Agonies of torture will rend their flesh from their sinews, will crack their bones 
and dissolve their lungs, and every pang will be multiplied in its passage to you. 

"Black death will be a guest at every American fireside; mothers and fathers and 
sisters, wives and sweetheai'ts wdll know the weight of that awful vacancy left by the 
bullet which finds its mark. 

"And still the recruiting ofEcers will come; seizing age after age, mounting up to the 
elder ones and taking the younger ones as they grow to soldier size. 

"And s ill the toll of death will grow. 

"Let them come! Let death and desolation make barren every home! Let the 
agony of war crack every parent's heart! Let the horrors and the miseries of the 
world-downfall swamp the happiness of every hearthstone! " 

To this is added: 

' ' Then perhaps you will believe what we have been telling you. For war is the price 
of vour stupiditv, you who have rejected Socialism." 

Then, after referring to the war and its horrors, we find the following: 

"You can not avoid it; you are being dragged, whipped, lashed, hurled into it; 
your flesh and brains and entrails must be crushed out of you and poured into that 
mass of festering decay." 

To this is added: 

"It is the price you pay for your stupidity — you who have rejected Socialism." 

Then, after referring to food prices, we find the following: 

"The Attorney General of the United States is so busy sending to prison men who 
do not stand up when the Star Spangled Banner is played that he has no time to pro- 
tect the food supply from gamblers." 

Then later: 

"We are beholding the spectacle of whole nations working as one person for the 
accomplishment of a single end , namely, killing. * * * 

"We have been telling you all for, lo, these many years, that the whole Nation 
could be mobilized and every man, woman, and child induced to do his bit for the 
service of humanity; but you laughed at us. 

"Now, you call every person traitor, slacker, proenemy, who will not go crazy on 
the subject of killing; and you have turned the whole energy of all the nations of the 
world into the service of their kings for the purpose of killing, killing, killing. 

' ' Why would you not believe us when we told you that it was possible to cooperate 
for the saving of life? 

"Why were you not interested when we begged you to work all together to build, 
instead of to destroy? To preserve, instead of to murder? 

"Why did you ridicule us and call us impractical dreamers when we prophesied 
a world state of fellow workers, each man creating for the benefit of all the world, 
and the whole world creating for the benefit of each man? 

"Those idle taunts, those thoughtless jeers, that refusal to listen, to be fair-minded, 
you are paying for them now. 

"Lo, the price you pay. Lo, the price your children will pay. Lo, the agony, 
. the death, the blood, the unforgettable sorrow— the price of your stupidity. * * * 

"VII. For this war — as everyone who thinks or knows anything will say, whenever 
truthtelling becomes safe and possible again — this war is to determine the question 
whether the chambers of commerce of the allied nations or of the Central Empires 
have the superior right to exploit undeveloped countries. 



SPEECH OP SENATOR ROBERT M. LA FOLLETTB. 9 

" It is to determine whether interest, dividends, and profits shall be paid to investors 
speaking German or to those speaking English and French. 

"Our entry into it was determined by the certainty that if the allies do not win 
J. P. Morgan's loans to the allies will be repudiated, and those American investors 
who bit on his promises would be hooked." 

We have here, not only lurid and exaggerated pictures of the horrors of war, possible 
and impossible, but many false statements calculated to incite opposition to the war 
and opposition to the Government and also calculated to interfere with the morale 
of our Armies, discourage enlistments, registration, and willing service in our Armies, 
and encourage desertion. These false statements are also calculated to encourage 
our enemies and discourage and intimidate our own citizens and soldiers, and thereby 
promote the success of our enemies. It is not true that the recruiting officers will 
take our sons of military age and "impress them into the Army." It is not true that 
"You are being dragged, whipped, lashed, hurled into it" (the Army or the war). 
It is not true that "The Attorney General of the United States is so busy sending 
to prison men who do not stand up when the Star Spangled Banner is played, that 
he has no time to protect the food suioply from gamblers." The Attorney General 
of the United States is not doing anything of the kind. It is not true that "We are 
beholding the spectacle of whole nations working as one person for the accomplish- 
ment of a single end — namely, killing." It is not true that, "Now you call every 
person traitcr, slacker, proenemy who will not go crazy on the subject of killing; 
and you have turned the whole energy of all the nations of the world into the service 
of their kings for the purpose of killing, killing, killing." It is not true that, "Our 
entry into it (this war) was determined by the certainty that if the allies do not win 
J. P. Morgan's loans to the allies will be repudiated and those American investors 
who bit on his promises wouM be hooked." Here is a p'.ain assertion to every intelli- 
gent mind that the declaration of war to which reference has been made contains a 
fa''sehood, and that such declaration was made because of the fear that the allies 
might nrt win, and that in such case J. P. Morgan's loans to the allies wouM be re- 
pudiated, payment refused, and that American investors would lose their loans and 
suffer less. In ether words, that our entry into this war with Germany was determined 
upon by Congress to insure, if possible, t?ie success of the allies, to the end that they 
wouM fulfill their contracts and pay the loans made them by individuals in the United 
States. The purposes and motives of our President and of Congress are impugned 
and grossly misrepresented and falsified. What reports or statements can be more 
or better caVu'ated to interfere with the operation and success of our military and 
naval forces in this war, or more or better calculated to promote the success of the 
enemies of the United States? 

[2-5] It is said, first, this pamphlet is an argument in favor of Socialism and of the 
Socialistic Fatty; and, second, that such publications are proper and allowable under 
our Constitution, which prohibits curtailment of freedom of speech and of the press. 

The first amendment to the Constitution of the United States provides: 

"Congress shall make no law respecting an establishment of religion, or prohibiting 
the free exercise thereof; or abridging the freedom of speech, or of the press: or of 
the right of the peop'e peaceably to assemble, and to petition the Government for a 
redress of grievances." 

If this means that every man and woman in the United States in times of war and 
national peril may falsely state or say in words or by means of pamphlets and writings 
printed and spread broadcast, anything and everything he pleases, however injurious 
to the general welfare and however grossly false the statements and however detrimental 
to the success of our military and naval forces the falsehoods may be, and that Congress 
is powerless to enact a law abridging this right, then the law under consideration is 
unconstitutional except in so far as it merely prohibits the circulation and distribution 
of such pamphlets containing the false reports and false statements of the nature 
described. In Warren v. LTnited States, 183 Fed., 718, 721; 106 C. C. A., 15(5, 159 
(33 L. R. A. [N. S.l 800) the Cii'cuit Court of Appeals, Eighth Circuit, said: 
_ "Liberty and freedom of speech under the Constitution do not mean the unrestrained 
right to do and say what one pleases at all times and under all circumstances," etc. 

In United States v. Toledo Newspaper Co. (D. C), 220 Fed., 458, it is held that the 
constitutional guaranty of freedom of the press is not infringed by summary process 
and conviction of contempt for publication tending to obstruct the administration of 
justice. If this be correct, why may not Congress enact a law making it an offense to 
make and spread broadcast, when a state of war exists, pamphlets containing materially 
false statements which are intended to interfere with and obstruct the lawful raising 
and organization of armies and the military operations of the Government and -which 
pamphlets are calculated to have that effect? Suppose a man goes out and publicly 
advocates by means of false statements the overthrow of our National Government; 



10 SPEECH OP SENATOR ROBERT M. LA FOLLETTE. 

the disbandment of our lawfully created national armies, oroanized for national 
defensa in time of war, and puts his false declarations and statements in pamphlet 
form and circulates them, can it be doubted that Congress may constitutionally prohibit 
such acts? In State v. Pape (90 Conn., 98; 96 Atl., 313), it is held: 

'^Liberty of speech and of the press is not license, not lawlessness, but the right 
to fairly criticize and comment." 

See, also. Ex parte Bird (5 Porto Rico, 241). 

In Turner v. Williams (194 U. S., 279, 294; 24 Sup. Ct., 719, 724; 48 L. Ed. 979), Mr. 
Chief Justice Fuller said: 

' ' The flaming brand which guards the realm where no human government is needed 
still guards the entrance; and as long as human governments endure they can not be 
denied the power of self-preservation as that question is presented here." 

The act of Congress in question here is one obA'iously enacted and necessary for the 
preservation of our Government and the enforcement of its rights. In my iudgment 
to deny its constitutionality is to deny to the Government of the United States the 
power of self-preservation by suppressing the publication and distribution of false 
statements made with the intent to destroy the morale and efiiciency of our armies 
when engaged in lawful warfare, and prevent or interfere with theii- lawful organiza- 
tion and the lawful recruiting thereof. Such publications give aid and comfort to the 
enemy. 

If a jury on e\ddence should find that this pamphlet contains false statements 
calculated to discourage oiu* armies and enlisted men, discourage compliance with 
our draft laws and interfere with their enforcement, or impair the morale of our armies, 
and that it was the intent of the writer and distributor to bring about such results, 
can it be justified on the theory that our Constitution warrants and protects the mak- 
ing of such false statements disseminated for such a purpose? I think not. Freedom 
of speech and of the pre.?s does not give liberty to the individual to prevent or inter- 
fere with the pre^erA'atiou of our Government or the organization and success of our 
armies, and this may not be done under the guise of adA'ocating the principles of a 
political partv or the principles of Socialism. In the instant case, the language 
employed and contained in this pamphlet is for the consideration of the jury, and it 
will be for the jurv to say whether or not the statements made, if proven to be false, 
were willfully made with intent to interfere with the operation or success of cur mili- 
tarj^ or naval forces, or to promote the success of our enemies, or willfully attempt 
to cause insubordination, or refusal of duty in such forces of the United States. 

This intent may be inferred from the nature and character of the false statements 
made and promulgated and the surrounding circumstances and conditions, and on 
a consideration of the conditions under which made and of the persons to whom made. 
The false statements must be willfully made, and their making and promulgation 
must be accompanied by the intent specified. Intent is a question of fact. Every 
sane person is presumed to intend the natural and known consequences of his acts 
volimtarily and knowingly done and of words used. 

It is for the jury to say, or will be, probably, under all the e\ddence in the case, if 
proof is given tending to sustain the allegations of the indictment, whether the defend- 
ants in spreading and distributing these pamphlets were merely advocating the prin- 
ciples and doctrines of the Socialistic Party or were attempting to discourage the 
war, enlistments, and recruiting and impair the morale of our Army, and thereby 
interfere with the operation and success of the military and naval forces of the United 
States to the injury of the United States, and intended so to do. 

Depicting the hoiTors of war, the devastation of country, and destruction of life 
and property caused by war may present an argument against engaging in war unneces- 
sarily — ^a reason for not doing so — but when coupled with materially false statements 
and representations as to what the officers and representatives of the Government are 
doing and as to why the war was engaged in or declared by the lawmaking body of 
the Nation, the realm of legitimate argument and free speech is departed from, and 
a question of fact is presented for the decision of a jury whether the horrors of war 
were depicted and the false statements maae to advance and promulgate the prin- 
ciples of a political party or to interfere with and destroy the efficiency of our armies 
and interfere with the operation and success of our military and naval forces and 
promote the success of the enemies of the United States. It must be that "free 
speech" and "'freedom of the press" has its limitations and do not include and pro- 
tect the making and promulgation of false statements knowingly made with intent 
to destroy owe armies in time of war and interfere with and prevent the enforcement 
of our laws. 

[6-8] It is urged that the conspiracy counts are insufficient, in that they do not 
charge what the conspiracy was, or what the conspirators were to do. The indictment 
charges that "throughout the pariod of time from the 6th day of April, 1917, to the day 
of the finding and presentment of this indictment" (October 25, 1917),the United 



SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 11 

States has been at war, and that "during said period of time the defendants," naming 
them, within the northern district of New York at Albany, N. Y., "unlawfully and 
feloniously have conspired, combined, confederated, and agreed together * * *_ to 
interfere with, prevent, hinder, and delay the execution of certain laws of the United 
States, to wit." These laws are then specifically named and pointed out. It is 
charged to have been a continuing conspiracy commencing on a day certain and con- 
tinuing in force and operation down to the date of the indictment. The indictment 
then charges "that during said period of time" — that is, from the beginning to the 
end thereof — -the conspiracy was that each of said defendants "should and would 
discourage, obstruct, and prevent the prosecution by the United States of said war 
between the United States and the Imperial German Government, and prevent, 
hinder, and delay the execution of said laws (the ones specified and pointed out) 
above enumerated, by personal solicitation, public speeches, and various pamphlets 
which they should and would distribute and circulate, intending arid attenapting to 
cause and influence various persons available for military duty to fail to register and 
to refuse to submit to registration and draft for service in said military and naval 
forces and to fail and refuse to enlist for service therein," etc. _ Then follows the 
charge of overt acts in execution of such conspiracy. Nothing is said to the effect 
that "the conspiracy includes the use or distribution of pamphlets containing false or 
untrue statements, but it is charged that defendants conspired to willfully cause and 
attempt to cause insubordination and refusal of duty, etc. The pamphlet is attached 
to and made a part of the indictment. Certain parts are quoted in the body of the 
indictment, and the statements quoted and other parts are alleged to be false. 

It is urged by defendants that the statements of fact contained in the pamphlet are 
but the expression of an opinion, as, for instance: "Into your homes the recruiting 
officers are coming. They will take your sons of military age and impress them into 
the Army." The word "impress," in connection with the creation of an army, 
implies the use of force, and the words of the pamphlet may be found to be calculated 
and intended to create the belief that recruiting ofiicers are going and do go into our 
homes and by force, and without any preliminary selection for military service in 
accordance with law, seize and force into the Army and Navy the sons of our citizens. 
The statement is calculated, and may have been intended, to create a feeling against 
recruiting, the selective-draft act, and the officials of the Government. Such state- 
ments inspire resistance and strengthen the determination of those disposed to be at 
all recalcitrant. It may be that there is no direct statement that one is in duty bound 
to resist, but it is plainly taught and indicated that it will be to the interest of many, 
if not all, to resist. Is the quoted statement a mere expression of opinion as to what 
is being done or is to be done? Is it not a bald statement of what is bein» done and is 
to be done under a law of Congress which justifies no such act by a recruiting officer? 
Then take this statement, "The Attorney General of the United States is_ so busy 
sending to prison men who do not stand up when the Star-Spangled Banner is played 
that he has no time to protect the food supply from gamblers." 

Is this an expression of opinion merely, or is it a bold, bald assertion that a fact 
exists, that a thing hai b ^en done and repeatedly done by the highest law ofi:cer of 
the National Government without -warrant of law? Is it not an a-'-ertion well cal- 
culated to excite hatred of this high official of the Government, by asserting that 
he is doing un'awful acts and so busily engaged in the doing that he pays no attention 
to the enforcement of laws providing for food conservation? Sjch statenients are 
likely to b? given credence in certain localities by certain classes, and so incite oppo- 
sition to the Government and opposition to law and its enforcement. It seems clear 
to me that these and other statements i b Dve quoted and found in the pamphlet are 
to be considered by the jury, which is to determine their truth or falsity, the willful- 
ness of the act, and the intent and purpose of the ones who made and promulgated 
th^m. 

Sjction 3 of the so-called espionage act, hereinbefore quoted, clearly points out 
three classes of acts constituting offenses thereunder. Ihe first consists in the willful 
making or conveying false reports or statements with the intent specified. The 
second consists in willfully causing or attempting to cause insubordination, disloyalty, 
mutiny, or relusal of duty in the military or naval forces of the United Spates. The 
third consists in willfully obstructing the recruiting or enlistment service of the 
United S ;ate3 to the injury of the service of the United S ates. It may be a question 
whether the making and conveyance of false reports and statements with intent to 
interfere with the operation or success of the military or naval forces of the United 
Spates, or to promote the success of its enemies, must be accompanied by an intent 
and purpose to injure the service of the United Sl^ates, and whether such false reports 
and statements must be of a nature or character which would injure the service of 
the United S ates. So it may be a question whether one who willfully causes or 
attempts to cause insubordination, disloyalty, mutiny, or refusal of duty, must intend 



12 SPEECH OF SENATOR ROBEET M. LA FOLLETTE. 

and purpose to injure the service of the United Spates. In short, do the words "to 
the injury of the service of the United States" relate back to and qualify each of the 
clauses of the section? Must the indictment allege, and must the Government prove, 
not only that the United S bates is at war, and that the false reports and statements 
were made and conveyed with intent to interfere with the operation or success of the 
military or naval forces, but that such acts actually resulted either in injury to the 
service of the United States or were intended so to do? 

This is true as to obstructing the recruiting and enlistment service as the section 
80 says in plain terms. But the obstruction need not be pliA^sical and all obstruction 
of such service is injurious to the ser^dce of the United States. Obstruction does not 
necessarily imply prevention. The flowing stream of water may be obstructed, and 
often is, while its continuous onward flow is not wholly prevented, and its ultimate 
onward flow mav not be prevented at all. Any and all acts arid words or writings 
that interfere with the operation or success of the military or naval forces of the United 
States, and all attempts, successful or unsuccessful, bv acts, words, or writings, to 
cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval 
forces of the United States in time of war, work to the injury of the service of the 
United States. When Congress wrote into section 3, above quoted, the words "or 
shall willfully obstruct the recruiting or enlistment service of the United States, to 
the injury of the service or of the United States," it may have had in mind the hun- 
dreds and thousands of cases where fathers and mothers and brothers and sisters will 
obstruct in a way and to an extent the recruiting and enlistment service bv urging 
and sDliciting their sons and brothers not to enlist. No one will contend, I think, 
that such an act will be held a willful obstruction of the enlistment service to the 
injury of the service of the United States within the intent and meaning of section 3 
of the a::t under consideration. But should some third person go about soliciting 
and urging young men not to enlist, extravagantly and untruly depicting the horrors 
and dang3rs and consequences of war, impuguing the motives and pui'poses of the 
President and Congress in declaring war, and misrepresenting the obje?ts sought to 
be attained by our Government in de?laring the existence of a state of war, wo have 
a cas3 where a jury well may find a willful obstruction of the recruiting or enlistment 
service of the United States to the injury of the sorvice of the Unitod States, even it 
the Governmeit is unable to prove that a single person was induced by such acts 
mt to enlist when otherwise he would have enlisted. 

Counts 1 a'ld 2 of the indictment charge conspiracy. The other counts charge the 
o!Ten333 sp3cified in soction 3 of the so-called espionage act, and the charge making 
aad conveyance of false reports, etc., and the willful attempting to cause insubordi- 
nation, etc., in two ways — 'to the injury of the service of the United States'' and a^so 
in another count without this clause. I think either count sufficient in law. The 
count which cha';g?s the willful obstruction of the recruiting and enlistment service 
also charges that it was done to the injury of the United States, and is clearly sufficient. 

[9] Citizens have the right to criticize the existing laws, point out their defects, 
injustice, and unwisdom, and advocate their amendment or repeal; but thev have no 
constitutional right to counsel, advise, encourage, and solicit resistance to the execu- 
tion of or refusal to obey them. A political party and its individual members may 
advocate the repeal of existing laws, their amendment and improvem^ent, and point 
out defects, and a political party may be formed for this very purpose. However, a 
so-called political party mav not be formed to resist the execution of existing laws 
claimed to be unwise, unpatriotic, and oppressive, and its members permitted to 
encourage and advocate resistance to their due execution because of their member- 
sliip therein. The willful resistance to the execution of a valid law may be made 
a crime, as may the willful obstruction of its enforcement. Any and all resistance 
and any and all obstruction to the operation or enforcement of a law mav be declared 
an offense. It is the duty of all persons to obey the law and in lawful ways when 
called upon by due authority to aid in its enforcement. If this is not true, no gov- 
ernment can survive. 

I find no ground for sustaining the demurrer to the indictment or to any count 
thereof, and same is overruled. 

The demurrer being overruled, the foregoing case was submitted 
to the jury and certain parts of the charge of Judge Ray are im- 
portant. Much of the opinion pertains to questions of intent and to 
questions of conspiracy. Tlie particular part of the opinion bearing 
upon the subject of violation of the espionage act is as follows: 

Now, gentlemen, by the act of Congress approved June 15, 1917, "An act to punish, 
acts of interference with the foreign relations, the neutrality, and the foreign com- 
merce of the United States, to punish espionage, and better to enforce the criminal 



SPEECH OF SENATOE ROBEET M. LA FOLLETTE. l3 

laws of the United States, and for other purposes," there was enacted this provision, 
among others. Of course, if the defendants care to have any particular section read 
that I don't read and will call ray attention to it, I will read it: 

"Sec. 3. Whoever, when the United States is at war, shall willfully make or con- 
vey false reports or false statements with intent to interfere with the operation or suc- 
cess of the military or naval forces of the United States or to promote the success of its 
enemies, and whoever, when the United States is at war, shall willfully cause cr at- 
tempt to cause insubcrdination, disloyalty, mutiny, or refusal of duty, in the military 
or naval forces of the United States, or" — now, here is another — -"shall willfully 
obstruct the recruiting cr enlistment service of the United States, to the injury of the 
service or of the United States, shall be punished by a fine of not more than $10,000 
or imprisonment for not more than twenty years, or both." 

And then follows the conspiracy clause, which I have already read, and do not need 
to re id agdin. 

Now, the Government contends that here was a conspiracy to violate that section. 
And it is charged in the indictment, and the Government contends, that these defend- 
ants did distribute this pamphlet, "The price we pay. " The Government contends 
that it did contain, and did convey, when they distributed it, false reports and false 
statements, with the intent to interfere with the operation and the success of the mili- 
tary and naval forces of the United States. And the Government also contends that 
this pamphlet, and the distribution of it, was intended — that is, that it was willfully 
distributed and given out, and that it was intended, and willfully and purposely 
intended, to cause, or to attempt to cause, insubordination among persons in the 
service — men drafted, or men already sworn in — men with the colors; that it was in- 
tended^had a tendency to, and would, promote and encourage disloyalty, might 
produce and cause mutiny; and that it was intended to bring about refusal of duty, 
especially in the military and naval forces of the United States. 

And, also, the Government contends that the making and putting out — giving to 
others of such a pamphlet as that containing the false statements — was an act that 
would obstruct the recruiting and the enlistment service of the United States; would 
encourage and lead young men not to enlist, not to recruit, etc. 

And i think 1 read the particular clauses in there to which the indictment called, 
attention. 

Now, gentlemen, in regard to the first alleged false statement: 

"Into your homes the recruiting officers are coming. They will take your sons of 
military age and impress them into the Army. " 

Ihere arises a contention, gentlemen, between the defendants and the Government. 
The Government says — the United States, here — that that is a false statement; false 
on the face of it, especially in view of the testimony of the military officer who was 
called here, and who testified that the recruiting service was, and is, purely voluntary; 
that no one goes into the Army through the recruiting service except voluntarily and 
willingly; that there is no impressment; and that the purpose of it was to interfere and 
obstruct, as specified in section 3, which I have read, and otherwise violate that sec- 
tion, by stirring up the mothers and the fathers, and brothers and sisters, and perhaps 
the young men themselves, and inducing the young men not to enlist, not to join the 
Army; and to urge the sons, brothers, etc., not to join. 

You have heard the contention on that subject. Now, is that statement false, or 
is it true, under the evidence in this case? A question of fact for you, gentlemen; 
not for the court, but for you. 

Then Mr. Lucey calls attention to another; 

"You can not avoid it; you are being dragged, whipped, lashed, hurled into it 
[the war]. " 

And Mr. Lucey claims that that is another false statement. Then another statement: 

"The Attorney General of the United States is so busy sending to prison men who 
do not stand up when the Star Spangled Banner is played, that he has no time to 
protect the food supply from gamblers." 

And Mr. Lucey contends that that is another false statement, calculated to incite 
opposition to the law, and defeat it, as mentioned in section 3. 

Now, then, on that subject, gentlemen, the United States claims to have proved 
that there is no law which requires anyone to stand up when the Star Spangled Banner 
is played. And here the Government reUes on another proposition of law to show 
the falsity of that, and wliich I charge you is the law — the Attorney General of the 
United States is the chief law officer of the United States — the head of the Department 
of Justice; and every law oHicer — and other officer, for that matter — law officer is 
applicable here to the United States — is presumed to do his duty, and not to \'iolate 
Ms duty. And therefore it is presumed the Attorney General did liis duty, and that 
presumption should obtain unless there be eviden'ce to the contrary. 



14 SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 

T leave it as a question of fact for you. Is it proved — the falsity of that statement? 
He is presumed to do his duty, and not to violate his duty. So the presumption is, 
in the first instance, that he h'ss not violated the law by sending, or attempting to 
send, anyone to prison who did not stand up when the Star Spangled Banner. was 
played; and there is no further evidence in this case on that subject. It is for you to 
say. Has the Government proved the falsity of it? I leave it to you, as a question 
of fact for you to determine. 

Then again: "Our entry into it," that is, the war, "was determined by the cer- 
tainty that if the allies do not win, J. P. Morgan's loans to the allies will be repudiated, 
and those American investors who bit on nis promises would be hooked." 

Now, the United States attorney, Mr. Lucey, says that that is a falsehood, and 
says that its falsity is shown absolutely by the address made by the President to Con- 
gress, in which, it is contended, he declared the purposes, and the necessities, and the 
reasons why we entered the war; and that that shows that this statement is false and 
untrue. 

And so the Government here says that these defendants knew these were false 
statements; that they were able to read, read the papers, must have read in the papers 
the address wliich the President made to Congress at the time, and that every man is 
presumed to know the law; that they knew that nothing of this kind had occurred, and 
that before they put it out, if they had any question about its truth or falsity it was 
their duty to have made inquiry. The Government says that it is shown by their 
knowledge of the law — presumed to kuow the law — the publications in the papers, 
that those statements were false and untrue. And it is for you to s.iy, gentlemen, 
are they, or are any of them, untrue? 

A part of the indictment and the last two counts of the indictment are based on 
a violation of section 3 : 

"Whoever, when the United States is at war, shall willfully make or convey false 
reports or false statements ■with intent to interfere with the opsration or success of 
the military or naval forces of the United States"; then, again, another offense, "or 
to promote the success of its enemies": and then another oftense, "and whoever when 
the United States is at war shall willfully cause or attempt to cause insubordination, 
disloyalty, mutiny, or refusal of duty in the military or naval forces of the United 
States"; then comes another, "or shall willfully obstruct the recruiting or enlistment 
service of the United States, to the injury of the service or of the United States, shall 
be punished," etc. 

So th'^re are three different species, or kinds, of offense, each separate from the 
other, although the offense in the first might consist of making and giving out false 
reports or false statements, one or both. But there must be the "intent to interfere 
with the operation or success of the military or naval forces of the United States or 
to promote the success of its enemies": and then, "whoever shall willfully cause or 
attempt to cause insubordination." Of course, that attempt must be willful; the 
party doing it must know — understand — in order to make it willful, that it would 
bring that result, or might; he must have that in his mind, that intent or that purpose, 
and intend to "willfully obstruct the recruiting or enlistment service." It doesn't 
make the accidental nor the unintentional interference a crime, but it makes the 
willful act an offense. The intent there is essential. I -will rep3at, that the knowl- 
edge of falsity is essential to the intent. The United States claims — when I say the 
United States, I mean the United States attorney — that these defendants did know, 
and must have known, the falsity of the statements complained of; that they knew 
what recruiting an army meant, and that recruiting did not, and could not, and would 
not, mean, or sanction, any impressment of persons of military age; that the law reg- 
ulates that. 

Now, these defendants have been upon the stand. You have heard the evidence 
on the part of the United States, and you have heard the evidence of the defendants — 
that is, their testimony — and you are to say, "Did they know, or did they not." If 
they didn't know, "nhy, of course, they couldn't willfully do a thing that they didn't 
know about. 

2. The Goverrunent contends that the defendants knew there was no law making 
it an offense not to stand up when the Star-Spangled Banner is played; and knew, 
and were bound to know, that no such law existed. That the' 'Attorney General 
of the United States is presumed to do his duty, and is presumed not to violate his 
duty, and therefore defendants knew of the falsity of that statement in regard to 
the Attorney General. And, of course, there are these prcsunpticns cf law again. 
Have the defendants, or have they not, said they didn't know? It is for you to 
say, for you to judge, on all the evidence in the case. 

Then, 3, the United States says that the defendants knew the war was not being 
waged — that its participants were not working as one person for the accomplish- 



SPEECH OF SENATOR ROBEET M. LA FOLLETTE. 15 

ment of a single end, namely, killing, and that everybody knew, from publications, 
from the papers, and the reading of the papers, and that these defendants say, some 
or all of thtm, that they did read the prominent papds, that the allies and the United 
States are resisting and defending for other puipcses than killing, killing. 

So the United btates says that there is another misstatement, which shows and 
characterizes the puipcse of the defendants in putting out these circulars. 

4. The United btatts says that the defendants are presumed to know of the declara- 
tion of war on the part of the United States and knew its purpose, and that they 
knew the statement as to the J. P. Morgan loans to be a false statement as to the 
purpose and intent in entering into the war. All of that, gentlemen, is for you and 
for your determination. 

Now, considerable has been said here, gentlemen, about a political patty. Now, 
of course, the Socialist Party is not on trial here; and these defendants are not on trial 
because they are Socialists. They are not on trial for being Socialists; but, of course, 
their political beliefs may have something to do in getting at their intent and purpose. 
It depends on what those political thoughts and purposes are. Political parties and 
political principles may legally be formed, and may be a necessity under our form of 
government. A political party, as a party, and its individual members, may lawfully 
and properly criticize and advocate the repeal of existing laws, and also advocate their 
amendment and improvement; but neither the party, as a whole, nor the individual 
members thereof, when we are at war, may lawfully resist the execution of an existing 
law claimed by them to be unwise, unpatriotic, oppressive, or unconstitutional, or 
obstruct its execution by the lawful authorities charged with that duty, by means of 
the making, and the publication, and the conveyance to others of false statements 
calculated by their nature and character to interfere with such execution of the law, 
or calculated to obstruct its execution, when the making and conveyance to others of 
such false statements is made a crime by a statute of the United States. And in this 
case you have heard me read the statute on that siibject. But there should be a 
proviso to that, geatlemen, and that is that the law, as made by the duly constituted 
lawmaking body, requires that the doing of the forbidden act must be accompanied 
by an intent to interfere with the operation or success of the military or naval forces 
of the United State3, or the other intent, to which I have called your attention. So, 
when the United States is at war, a person, whatever his political party, or principles, 
or beliefs has no right to willfully attempt to cause, by means of false statements, 
either insubordiuation, disloyalty, mutiny, or refusal of duty in the military or naval 
force3 of the United States. The espionage act makes it a crime so to act. And, of 
course, in this case it is for yoii to say, gentlemen; it is one of the questions of fact for 
you to determine — the intent of these elefendants and of everyone. Did they have 
the forbidden intent? Did they willfully do any of the acts forbidden, to which I 
have called your attention? That means willfully and knowingly. It is for you to 
say. It is for you to decide. 

Now, then, gentlemen, a person may freely express his opinions. Of course, there 
is a contention on the part of these defendants that they were Socialists; and one of 
the defendants testified, and I think others testified in substance to the same, that 
he put out the pamphlet — or made that his purpose in putting it out, I think he said, 
or reason or intent, I have forgotten just how the attorney here did phrase it, but 
that was the purpose of it — that he thought putting out this pamphlet would promote 
socialism, and his object was to promote socialism. And either he, or another one, 
said that his object in putting out this pamphlet was to increase the membership, 
I think. That was the substance of it. If I get that wrong, correct me. 

Now, a person may freely express his opinion as to the wisdom or the unwisdom 
of a law of the United States or as to its validity or advocate the repeal, in lawful ways 
and by lawful methods, of any law, and this he may do by words orally spoken or by 
written or printed words in the form of pamphlets or circulars, but he has no right 
to counsel or advise resistance to or assist in resisting the execution of any valid law 
by the duly constituted authorities or to obstruct the due execution of a valid law, 
or assist in sa doini;, by acts or false statements or otherwise, when such resistance or 
obstruction is made unlawful or an offense against the United States by an act of 
Congress duly approved. Of course, if there is na law on the subject, then a person 
can lawfully do it; but when there is an act of Con;2;re33 forbidding it — saying it shall 
not be done — why, then, of course, he has no ri^ht to do it. And, gentlemen, to place 
that restriction on making false statements with that intent, I charge you, as a matter 
of law, is not a violation of that constitutional provision that freedom of speech and 
the press shall not be abridged, or words to that effect. And I might illustrate there, 
and perhaps I had better, to make it perfectly plain what I mean. 

You have a right to discuss, you have a right to argue, you have a right to object, 
you have a right to disapprove, and you have a right to make any statements as far 



16 SPEECH OF SENATOE ROBERT M, LA FOLLETTE. 

as the United States is concerned, however false they may be, which are not forbidden 
by law. Of course, in States there may be some different rule. A man might come 
in here and say thf.t there were 20 circles around the sun — red, white, and blue — very 
distinct. It might be an absolute and a bald lie. Now, there is no law that would 
touch him for telling that lie. You might say that is freedom of speech. Well, it 
would be. It is a harmless lie; it would injure nobody, nor his person, nor his prop- 
erty, nor his rights. If the same person should come in here and publicly and falsely 
say that one of your reputable citizens here had just stolen the horse of his neighbor 
and converted it to his own use, that would be a slander. And if he should print and 
circulate such a falsehood it would be a libel, and he would be answerable to the law 
for it; not the Unites States law, but the State law. So as to matters pertaining to the 
United States and affecting its interests and its rights. The Congress of the United 
States has^the rght to make the promulgating of false statements and false recre- 
sentations 'unlawful, and a crime in certain cases. So I tell you here, in regard to 
those matters that affect the war — that touch the prosecution of it. Congress, in the 
exercise of its rights — constitutional powers, as the lawmaking body — has the right 
in certain cases to prohibit the making of false st^itements and the putting of them 
out. And in this case, as to these statements, it has undertaken -so to do. So I tell 
you, gentlemen, as a matter of law, that section 3 of the espionage act is a constitu- 
tional law and is a valid law. No man has the right, knowingly and willfully, to 
violate it with the intent specified. Discussing, criticizing, or advocating the repeal 
or amendment of an existing law is one thing, while resisting or obstructing the 
execution of such law is quite another. 

Liscusiing, criticizing, or advocating the repeal or amendment of an existing law is 
one thing, while resisting or obstructing the execution of such law is quite another. 
The first is lawful under our Constitution, and may not be prohibited by law under our 
Constitution: but the second, the resistance to, and the obstruction of the execution 
of a law by acts or false statements, if forlidden by Federal law, is unlawful and may 
be declared a crime by ( ongress. ( ongi'ess may make actual resistance to the execu- 
tion of a law a crime: it may make it a crime to obstruct the execution of a law of the 
United States by acts done, and false statements made, for that purpose, and with that 
in'ent, whether the false statements consist of words orally spo" en, or are put in 
writing or print and ( irculated in that form, and which false statements are of a nature 
and character calculated to produce such result. Such a law is not an abridgment 
of free speech or of freedoni of the press in a iolation of the ( onstitution of the United 
States. It is the duty of every citizen to aid in the execution of all existing laws when 
called upon to do so by lawful authority, and also to obey such laws. No parson is 
justified in resisting the execution, or in obstructing the execution of a valid law of the 
United States when such resistance or obstruction is made a crime by act of Congress, 
because in his opinion such law is unconstitutional. If a person for himself under- 
takes to decide and determine the constitutionality of a law of Congress and then 
knowingly and unlawfully resists its execution, or obstructs its execution, on his own 
judgment and opinion, or on the judgment or opinion of some other person, by acts or 
false statements, or both, and it is made a crime to so resist or obstruct, he does so at 
his peril: and his good faith, the honesty of his belief in its imconstitutionality, or the 
unconstitutionality of the law so resisted, is no defense, if he intended to accomplish 
or bring about the forlidden results — that is, the results forbidden by law — the actual 
prevention of the execution of such law, or the actual obstruction of its execution, if 
that obstruction or resistance is forlidden by law. The espionage act of Congress, 
approved June 15, 1917, makes it a crime for a person, or persons, one or more, when 
the United States is at war, to willfully make or convey false reports or false statements 
to others, or to another, with intent to interfere with the operation or success of the 
military or naval forces of the United States or to promote the success of its enemies. 
If a person willfully — that is, knowingly and purposely, makes up those false reports 
or false statements and conveys them to others with such intent and purpose, he 
commits a crime, if it is done when the United States is at war with a foreign nation, 
whether such false reports and statements are successful or not: that is, whether or 
not the operation and success of the military and naval forces of the United States are 
actually interfered with or injured. It is the ma'' ing and conveyance to others, or to 
another, of such false statements and reports, with the intent specified, that consti- 
tutes the Clime; not the success that might follow their making and conveyance, or 
the interference that might result. This false report and statement must be a material 
one, and one by its nature and character calculated to interfere with the operation or 
success of the military or naval forces of the United States or to promote the success 
of its enemies. 

In this cas'e the United States charges in the indictment, and insists that it has 
proven that various of the statements to which I have called your attention, contained 



SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 17 

in the pamj>hlet, which each of the defendants testifies he and the other defendants 
conveyed toothers — that is, circulated on the streets of Albany, and at various times 
in that city — contained materially false replorts and statements of the nature which 
I have stated, and that such pamphlets were so circulated — that is, conveyed, with 
intent to interfere with the operation or success of the military or naval forces of the 
United States, by discouraging enlistments, intimidating and discouraging our soldiers, 
weakening or destroying the morale of our armies, and even encouraging desertion 
and evasion of military service and duty. The Government contends here that these 
false statements are so purposely interwoven with a description and statement and 
word picture of the horrors and miseries of war as to have this effect, and are such as 
to be well calculated to have that effect, and that such was the design, purpose, and 
intent, not only of the composer and writer of the pamphlet, but of these defendants, 
and each of them, in circulating it — that is, conveying it to others with the false state- 
ments therein and forming a part thereof. 

Now then, gentlemen, in that connection it is my duty to say that these defendants 
have l)een on the stand; they deny any such purpose; they deny any such intent. 
You have heard them, you have seen them, and you are to consider theii- evidence 
and their statements. The Government has put in evidence the declaration of war — 
that is, the joint resolution of Congress declaring and recognizing the existence of a 
state of war ))etween the United States and the Imperial German Government,^ ap- 
proved by the President of the United States: also the message of the President of the 
United States stating the cause and purpose of the war — the Government here on this 
trial claims that is true — states the actual causes of that war and of that action and 
the reasons why the United States entered the war, and showing this, the Government 
claims here, that we, the United States, were forced into the war, by the causes and 
for the reasons there stated. This, the United States attorney claims, shows the falsity 
of the statement contained in the pamphlet "The price we pay," that "Our entry 
into it was determined by the certainty that if the allies do not win, J. P. Morgan's 
loans to the allies will be repudiated, and those American iuA^estors who bit on his 
(meaning Morgan) promises would be hooked." 

Now, this, the United States attorney argues, attributed a venal and an unworthy 
motive, not only to Congress but to the President, in urging and adopting the decla- 
ration of war, and is a false statement, willfully and knowingly made, and calculated 
not only to interfere with the operation or success of the military or naval forces of 
the United States, but to encourage our enemies and promote their success. The 
truth or falsity of the statements which I have read is a question of fact for you, as is 
that of every other statement there which is claimed to be false. And I charge you 
in that connection, gentlemen, that it is not necessary for the United States to prove, 
nor is it necessary for you to find, in order to bring about the results for which the 
Government contends, that all of the statements therein contained are false or untrue; 
only that some of them are false and untrue — some of the statements — the material 
ones. 

And I will repeat the contention of the Government; that is, that certain of them 
which are false and untrue are so interwoven with statements which may be true— 
which are true — of which the falsity is not shown, even though exaggerated in their 
truth, as to make the false statement attractive, and to make them the more effective, 
to bring about the unlawful purpose which the United States attorney says was 
intended. All of that is to be considered by you; it is to be determined by you as a 
question of fact. I have already told you that you are to determine whether it is 
false, and what the intent and purpose of the defendants was. If you find these 
statements here were true, or if you find that they are not proven to be false, then 
that ends this branch of the case, and your verdict wall be for the defendants, for on 
that branch of the case it rests on the falsity of those statements to which I have 
called your attention. If you find it was false — contained false statements of the 
character I have said they must be — then if willfully conveyed — I mean conveyed 
by the distribution of the pamphlet to others — Avith intent to interfere with or obstruct 
the military or naval forces of the United States — if you find all these facts for the 
Government, and the falsity of other statements to which I have called your atten- 
tion, then you should say guilty of this charge, pro^-ided you are .satisfied of such 
facts beyond a reasonable doubt. 

There is another opinion by Judge Ray in the same district, de- 
Hvered on demurrer to indictment involving the same facts and sub- 
stantially the same legal principles. It will be unnecessary to review 
this decision, as it would not add anything to a knowledge of the legal 
questions decided. The case is found in Bulletin 15 of the Depart- 
ment of Justice, and was decided ])y Judge Ray on demurrer. The 
51951—18—2 



18 SPEECH OF SEiS^ATOR EGBERT M. LA FOLLETTE. 

judge, however, does discuss the question of tlie constitutional right 
of freedom of speech and freedom of the press and without comment. 
This language is here quoted as follows : 

The first amendment to the Constitution of the United States provides: "Congress 
shall make no law respecting an estaljlishment of religion, or prohibiting the free 
exercise thereof; or abridging the freedom of speech or of the press; or of the right 
of the people peaceably to assemble, and to petition the Government for a redress of 
grievances."' If this means that every man or woman in the United States in times 
of war and national peril may falsely state or say in words, or by means of pamphlets 
and writings printed and spread broadcast, anything and everything he pleases, 
however injurious to the general Avelfare and however grossly false the statements 
and however detrimental to the success of our military and naval forces the falsehood 
may be. and that <"ongress is powerless to enact a law abridging this right, then the 
law under consideration is unconstitutional except in so far as it merely prohibits 
the circulation and distribution of such pamphlets containing the false reports and 
false statements of the natiu-e described. In Warren r. United States (183 Fed., 71 S. 
721) the Circuit Court of Appeals. Eighth Circuit, said: "Liberty and freedom of 
speech under the Constitution do not mean the unrestrained right to do and say what 
one pleases at all times and imder all circumstances." etc. 

In United States r. Toledo Newspaper Co. (220 Fed.. 458) it is held that the constitu- 
tional guarantee of freedom of the press is not infringed by summary process and con- 
viction of contempt for ]>ublication tending to obstruct the administration of justice. 
If this be correct, why may not Congress enact a law making it an offense to make and 
spread broadcast, when a state of wai' exists, pamphlets containing materially false 
statements which are intended to interfere -with and obstruct the lawful raising and 
organization of armies and the military operations of the Government and which 
pamphlets are calculated to have that effect? Suppose a man goes out and publicly 
advocates 1)y means of false statements the o\erthrow of our National Government, 
the disbandmont of our lawfully created national armies, organized for national 
defense in time of war. and puts his false declarations and statements in pamphlet 
form and circulate? them, can it be doubted that Congress may constitutionally 
prohibit such acts? In State r. Pape (90 Conn.. 98) it is held: "Liberty of speech 
and of the press is not license, not lawlessness, but the right to fairly criticize and 
comment." (See also Ex parte Bird, 5 Porto Paco, 241.) 

In Turner r. Williams (194 U. S. . 279, 294). Ur. Chief Justice Fuller said : The "flam- 
ing brand which guards the realm where no human government is needed still guards 
the entrance; and as long as himian governments endure they can not be denied the 
power of self-preserA-ation as that question is presented here." The act of Congress 
in question here is one obviously enacted and necessary for the preservation of our 
Government and the enforcement of its rights. In my judgment, to deny its con- 
stitutionality is to deny to the Government of the United States the power of self- 
preservation by suppressing the publication and distribution of false statements 
made with the intent to destroy the morale and efficiency of our armies when engaged 
in lawful warfare and prevent or interfere with their lawful oi'ganization and the 
lawful recruiting thereof. Such publications give aid and comfort to the enemy. 

In the case of Jefferson Pubhshing Co. v. West, Postmaster, decided 
in the District Court of the Northern District of Georgia, on August 
29, 1917, by Judge Speer, it appears a suit was brought against the 
postmaster to enjoin him from withdrawing the second-class mailing 
privilege of the Jeffersonian, a newspaper which had been excluded 
from the mails in violation of the act of June 15, 1917. The facts 
are sufficiently stated in the opinion, which is as follows: 

Speer. District Judge: The bill before the court was brought originally to enjoiii 
the postmaster at Thomson. Ga., from withdrawing the second-class mailing privi- 
leges of the Jeffersonian. The action complained of had been taken by the post- 
master in obedience to an order of Hon. A. S. Burleson, as Postmaster General. 

Appreciating the weighty effect of determination by the Postmaster General of any 
material and relevant questions of fact arising in the administration of the statutes 
of Congi-ess relating to his department, a preliminary injunction was withheld. A 
rule was, however, granted, calling upon the respondent to show cause why the injunc- 
tion sought should not be granted. At the hearing, it became apparent that the 
Postmaster General had forbidden the Jeffersonian of the 16th instant all admittance 
to the mails: this, upon the ground that it was distinctly unmailable. By suitable 



SPEECH OF SENATOR EOBEET M. LA FOLLETTK. 19 

amendment, the legality of this conckision was challenged. The court, being of 
opinion that the plaintiff was entitled to specific information, not only of those fea- 
tures of the Jeffersonian issued on the 16th instant held unmailable, but also those in 
past issues deemed so tinmailable as to induce the conclusion by the Attorney Gen- 
eral that the publication was not a newspaper, in the meaning of the law conferring 
the second-class priAilege. dhected that the respondent should file specifications of 
all such matter. This has been accordingly done, and thus the question is ])resented: 
Do the facts that the determination of the Postmaster General demand oi' justify a 
court of the United States in the interference here sought with an administrative 
branch of GoAernment? 

In the afhdaA-it of the Postmaster General, after the specification required by the 
court of the passages in the Jeffersonian held by him to be unmailable, there appears 
the following statement: 

"Deponent further says that in his judgment, in their entirety, the issues (of the 
Jeffersonian) evince a purpose and intent on the part of the publisher to willfully 
make or convey false reports or false statements, with intent to interfere with the 
operation and success of the military or naval forces of the United States, to willfully 
obstruct the recruiting or enlistment service of the United States to the injury of the 
service, * * * and that the ckculation of such matter is causing antagonism 
and resistance among the people to the conduct of the war with respect to enlistments, 
execution of the draft, and the sale of bonds to raise i-evenue to carry on the war." 

The Postmaster General further states under the sanction of his oath that he is 
advised and believes that there is an organized propaganda which has inflamed a large 
body of people to such an extent that it constitutes in effect the advocacy of treason, 
insurrection, and forcible resistance to the laws of the United States. Upon such in- 
information, he states that this has been actually threatened, and that prominent 
among the publications thus engaged is the Jeffersonian; that the matter it produces 
to this end, in contemplation of the espionage act, is nonmailable. After due and 
thorough consideration, deponent so decided, but prior to his ruling that the issue of 
June 28, 1917, was nonmailable, the paper was submitted to the Attorney General of 
the United States, and deponent was advised by the Attorney General that the paper 
was in violation of section 3 of title 1 of the espionage act. For the same reason, and 
because it contained matter of the same nonmailable description, the Postmaster 
General, after examination, caused the postmaster at Thomson to be advised that the 
issue of August 16 was also unmailable. Thus it will be seen that the court is advised 
of the concurrent opinion of two members of the cabinet, the chief of the Post Office 
Department, and the chief of the law department of the Government, in justification 
of the action of which plaintiff complains. 

A supreme measure of legislation, enacted by Congress for the successful prosecution 
of the great war in which the country is engaged, termed the espionage act, in title 1, 
section 3, declares that: 

"Whoever, when the United States is at war, shall willfully make or convey false 
reports or false statements with intent to interfere with the operation or success of 
the military or naval forces of the United States, or to promote the success of its 
enemies; and whoever, when the United States is at war, shall willfully cause or 
attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military 
or naval forces of the United States, or shall willfully obstruct the recruiting or enlist- 
ment service of the United States, to the injury of the service * * * Qf ^he United 
States, shall be punished by a fine, " etc. 

In connection with this, section 1 of title 12 of the same act must be considered. 
This declares that: 

"Every letter, * * * newspaper, etc., in violation of any of the proAdsions of 
this act is hereby declared to be nonmailable, * * * and shall not be conA'eyed 
in the mails or delivered from any post office or by any * * * carrier. " 

The light afforded by these sections of a valid and vital law shone upon the pages of 
the Jeffersonian when they were under the scrutiny of the members of the President's 
Cabinet. Congress had declared war. Thousands of the elite of the American Army 
were on the soil of France. At any moment the crash of their rifle fire and the thunders 
of their artillery in the vindication and defense of human liberty might be heard. 
American men of war, manned by Americans, were swiftly cleaving the waters for- 
bidden by the enemy to om' commerce, C[uesting every billow for his liu-king and 
deadly craft. By the thousands, the gallant youth of every American state were rally- 
ing to the flag. By the vast oversubscription of the liberty bonds om- people had 
proven that in the common cause they will be as lavish of their treasure as of their 
blood. With the utmost nobility of soul, Avith the self-sacrificial spirit of woman, in 



20 SPEECH OF SENATOR EOBEBT M. LA FOLLETTE. 

the humane Red Cross and similar organizations, our country's daughters were no 
whit behind her sons. 

At this juncture of the nation's life, the Postmaster General and the Attorney 
General have discovered in the plaintiff's publication, which the Government through 
its mail was distributing to its people, such passages as this, taken from the issue of 
June 28: 

"Men conscripted to go to Europe are vii'tually condemned to death, and everybody 
knows it. 

"President Wilson admitted as much in his Flag Day address. * * * Why is 
your boy condemned to die in Europe?" 

Again in the issue of July 19 is a statement aimed at the Chief Magistrate of the 
United States. That it is false, that it was intended to interfere with the operation 
or success of our forces, that it was an attempt to cause insubordination, disloyalty, 
mutiny, or refusal of duty by them, the Postmaster Geiieral might well conclude. 

"Does he, the President, not know that the conscription act, forcing citizens out 
oi the Union to die in Belgium and France, is every bit as lawless as the action of the 
Phelps Dodge Copper Co. in forcing these 1,100 miners out of Arizona? What are 
1,100 miners to 685,000 conscripts whom our Caesar has condemned to death in 'foreign 
fields of blood'?'" 

Nor is such reference as the following, to the Commander in Chief of the Ai-my and 
Navy of the United States, made in time of war, deterrent to insubordination, dis- 
loyalty, mutiny, or refusal of duty: 

"Are we — like the sow retm-ning to her wallow, and the dog to his vomit — to go 
back to the medievalism of personal rule — a Pope's word ruling the chiu-ch, and 
a king's word ruling the state? 

""\Vhy not call Woodrow Wilson by the name of King, or Kaiser, or Czar, if the 
Constitution is to be treated as the Kaiser treated the Belgium treaty? 

"The Kaiser did not sweai- to support the Belgium treaty. Woodrow Wilson did 
swear to support the Constitution. 

"And now, within six months after taking that solemn and public oath, the Con- 
gressmen and President, who did so, are treating the Constitution exactly as the 
Kaiser treated the Belgium treaty." 

Nor does Congress escape. On page 4 of the issue of July 19 is printed the -vote of 
the House on the question to create a national army; this under the title: 

"These are the Representatives in Congress, lower House, who confiscated the liberty 
and the lives of your sons.'" 

A more direct, but not more effective, effort to obstruct the recruiting or enlistment 
service of the United States appears on page 7 of the issue of July 26, 1917: 

" I advise [prints the editor of the Jeffersonian] the conscripts to await the decision 
of the United States Supreme (lourt, and not to be clubbed by the fact of conscription 
into enlistment. Once you volunteer, and sign up, you can be sent anywhere, and 
the law can't help you." 

Equally, l)ut not more, unmailable in contemplation of the act of Congress above 
quoted is the issue of August 16. In the affidavit before the court the Postmaster 
General, as we haA'e seen, after charging the existence of an organized propaganda to 
discredit and handicap the Government in the prosecution of the war, declared that 
such matter is in violation of section 3 of title 1, and sections 1 and 2 of title 12, of the 
espionage act, and is nonmailable; that for these reasons the publication is not a news- 
paper or other periodical publication, within the meaning of the laws of the United 
States governing mailable matter of the second class; and the deponent so decided 
after due and thorough consideration of the matters and things stated herein. In this 
conclusion I find that he was fully justified. 

In such crises in Lacedtemon, the Spartan mother, when her son went forth to 
battle, was accustomed to exclaim, "Return on your shield or with it." How dis- 
similar, liow sordid, is the cowardice the .leffersonian would encourage: 

■"What about a carload of German soap made out of our boys? 

•"What al:)out manuring German fields with our bravest youth, and fattening German 
hogs on the choicest selection from American manhood? 

■■ "I raised my boy to be a soldier,' says the song, but did mother raise him to he 
pig feed ? " ' 

Had the Postmaster General longer permitted the use of the great postal system 
-which he controls for the dissemination of such poison, it would have "been to forego 
the opportunity to serve his country afforded by his lofty station. 

This is, moreo-\'er, an additional consideration of the weightiest character, which 
obliges the denial of such an injunction as is here sought. An appeal is made to an 
American court of equity to oblige the postal authorities of our country to contribute 
its mailing facilities for the furtherance and success of a propaganda against the 
Nation as distinct as it is truculent and dangerous. Under the familiar rule in equity. 



SPEECH OP SENATOR ROBERT M. LA FOLLETTE. 21 

such an appeal is addressed largely to the discretion of the court. It is to be deter- 
mined by the conscience of the chancellor, and always with proper regard to the public 
welfare. This imports the country's welfare. And a party seeking this extraordinary 
remedy, under a rule equally familiar, must come into court with clean hands. 
Can one be said to come with clean hands when the policy, methods, and efforts 
he would maintain may cause his hands to be imbrued in the blood of the demoral- 
ized and defeated armies of his countrymen? If by such propaganda American soldiers 
may be convinced tliat they are the victims of lawless and unconstitutional oppres- 
sion, vain indeed will be the efforts to make their deeds rival the glowing traditions 
of their hero strain. On the contrary, the world will behold America's degradation 
and shame, the disintegration under tire of our line of battle, the inglorious flight of 
our defenders, like the recent del^acle of the Russian army, brought about by methods 
much the same, the ultimate conquest of our country, the destruction of its institu- 
tions, and the perishing of popular government on earth. 
The preliminary injunction is denied. 

After the opinion in the foregoing case, which denied the prehmi- 
nary injunction, at the request of the plaintiff, another rule was 
granted to show cause why the injunction sought should not issue. 
Amendments were made of the affidavits, not necessary here to 
recite, and upon this hearing the court granted the injunction, hold- 
ing the publication to be in violation of the espionage act. There is 
quoted a part of this opinion by Judge Speer: 

The Postmaster General further states under the sanction of his oath that he is ad- 
vised and believes that there is an organized propaganda which has inflamed a large 
body of people to such an extent that it constitutes in effect the advocacy of treason, 
insurrection, and forcible resistance to the laws of the United States. Upon such 
information he states that this has been actually threatened, and that prominent 
among the publications thus engaged is the Jeft'ersonian ; that the matter it produces 
to this end in contemplation of the espionage act is nonmailable. After due and 
thorough consideration deponent so decided, but prior to his ruling that the issue of 
June 28, 1917, was nonmailable the paper was submitted to the Attorney General of 
the United States, and deponent was advised by the Attorney General that the paper 
was in violation of section 3 of Title I of the espionage act. 

For the same reason and because it contained matter of the same nonmailable 
description the Postmaster General, after examination, caused the postmaster at 
Thomson to be advised that the issue of August 16 was also unmailable. Thus it will 
be seen that the court is ad\dsed of the concurrent opinion of two members of the 
Cabinet — the Chief of the Post Oflflce Departmeiit and the Chief of the Law Depart- 
ment of the Government — in justiflcation of the action of which plaintiff complains. 

A supreme measure of legislation enacted by Congress for the successful prosecution 
of the great war in which the country is engaged, termed the "espionage act," in 
Title I, section 3, declares that "Whoever, when the United States is at war, shall 
willfully make or convey false reports or false statements with intent to interfere with 
the operation or success of the military or naval forces ot the United States or to pro- 
mote the success of its enemies; and whoever, when the United States is at war, shall 
willfully cause, or attempt to cause, insubordination, disloyalty, mutiny, or refusal 
of duty in the military or naval forces of the United States, or shall willfully obstruct 
the recruiting or enlistment service of the United States to the injury of the service 
of the United States, shall be punished by a fine," etc. 

In connection with this, section 1 of Title XII of the same act must be considered. 
This declares that "every letter, newspaper, etc., in violation of any of the provisions 
of this act is hereby declared to be nonmailable, and shall not be offered in the mails 
or delivered from any post office nor by any carrier." The light afforded by these 
sections of a valid and vital law shown upon the pages of the Jeff'ersonian when they 
were under the scrutiny of the members of the President's Cabinet. Congress has 
declared war. Thousands of the elite of the American Army were on the soil of 
France. At any moment the crash of their rifle fire and the thunders of their artillery 
in the vindication and defense of human liberty might be heard. American men-of- 
war manned by Americans were swiftly clearing the waters forbidden by the enemy 
to our commerce, questing every billow for his lurking and deadly craft. By the 
thousands the gallant youth of every American State were rallying to" the flag. In the 
vast oversubscription of the liberty bonds our people had proven that in the common 
cause they will be as lavish of their treasure as of their blood. With the utmost 
nobility of soul, with the self-sacrificial spirit of woman, in the humane Red Cross 
and similar organizations, our country's daughters were no whit behind her sons. 



22 SPEECH OF SENATOR EOBEET M. LA POLLETTE. 

At this juncture of the Nation's life the Postmaster Oeneral and the Attorney Gen- 
eral have discovered in the plaintiff's publication, which the Government, through 
its mail, was distributinu- to its people, such passasjes as this, taken from the issue of 
June 28 : 

"Men conscripted to y,o to Europe are virtually condemned to death and every- 
body knows it. 

'"President Wilson admitted as much in bis ''lag Day address. * * * Wliy is 
your boy condemned to die in Europe? '" 

Again, in the issue of July 19, is a statement aimed at the Chief Magistrate of the 
United States. That it is false, that it was intended to interfei'e with the operation 
or ,succe.-'s of our forces, that it was an attempt to cause insubordination, disloyalty, 
mutiny, or refusal of duty by them the Postmaster General might well conclude. 

''Does he, the President, not know that the conscription act, forcing citizens out of 
the Union to die in Belgium and France, is every bit as lawless as the action of the 
Phelps-Dodge Copper Co. in forcing these 1.100 miners out of Arizona? What are 
1,100 miners to 085,000 conscripts whom our Oa?sarhas condemned to death in ' foreign 
fields of blood ' •?" 

Xor is such reference as the following, to the Commander in ( 'liief of the Army and 
Navy of the I'nited States, made in time of war, deterrent to insubordination, dis- 
loyalty, mutiny, or refusal of duty: 

■"Are we. Like the sow returning to her wallow and the dog to his vomit, to go back 
to the medievalism of personal rule- a pope's word ruling the chiirch and a king's 
word ruling the state? 

■'Why )iot call Woodrow Wilson by the name of King or Kaiser or Czar if the Con- 
stitution is to be treated as the Kaiser treated the Belgian treaty? 

"The Kaiser did not swear to support the Belgian treaty. Woodrow \\'ilson did 
swear to support the Constitution. 

''And now. within six months after taking that solemn and public oath, the (^'on- 
gressmen and President who did so are treating the Constitution exactly as the Kaiser 
treated the Belgian Treaty." 

Nor does Congress escape. On j)age 4 of the issue of July 19 is printed the vote of 
the House on the question to create a National Anny. This under the title "These 
are the Rejiresentatives in Congress, lower House, who confiscated the liberty and 
lives of ybursons." 

A more direct but not more ell'ective effort to obstruct the recruiting or enlistment 
servdce of the United States appears on page 7 of the issue of July 26, 1917: 

"I advise (prints the editor of the Jeffersonian) the conscripts to await the decision 
of the United States Supreme ('otu-t and not to be clubbed by the fact of conscription 
into enlistment. Once you volunteer and sign up you can be sent anywhere, and the 
law can't help you." 

Equally but not more unmailable in contemplation of the act of Congress aboA-e 
quoted is the issue of August 16. In the afhda\it betore the court the Postmaster 
(General, as we have seen, after charging the existence of an organized propaganda to 
discredit and handicap the Government in the prosecution of the war, declared that 
such matter is in violation of section 3 of Title I and sections 1 and 2 of Title XII of 
the espionage act and is nonmailable. That for these reasons the publication is not a 
newspaper or other periodical publication witliin the meaning of the laws of the 
United States governing mailable matter of the second class, and the deponent so 
decided after due and thorough consideration ol the matters and things stated herein. 
In this conclusion I find that he was fully justified. 

In such crises in Lacedtemoh the Spartan mother, when her son went forth to battle, 
was accustomed to exclaim, "Return on your shield or with it!" How dissimilar, 
how sordid, is the cowardice the Jeffersonian would encourage — 

"^\niat about a carload of German soap made out of our boys? 

"What about manuring German fields with our bravest youth and fattening German 
hogs on the choicest selection from American manhood? 

'"I raised mv bov to be a soldier,' says the song, but did mother raise him to be pig 
feed?^ 

Had the Postmaster General longer permitted the use of the great postal system, 
which he controls, for the dissemination of such poison it would have been to forego 
the opportunity to serve his country afforded by his lofty station. 

There is, moreover, an additional consideration of the weightiest character, which 
obliges the denial of such an injunction as is here sought. An appeal is made to an 
American court of equity to oblige the postal authorities of our country to contribute 
its mailing facilities for the furtherance and success of a proj^aganda against the Nation 
as distinct as it is truculent and dangerous. Under the familiar rule in equity, such 
an appeal is addressed largely to the discretion of the court. It is to be determined 
by the conscience of the chancellor, and always \vith proper regard to the public 



SPEECH OF SENATOR EOBEET M. LA POf.LETTE. 23 

welfare. Tliis imports the country's welfare. And a party seeking this extraordinary 
remedy under a rule equally familiar must come into court with clean hands. Can 
one be said to come with clean hands when the policy, methods, and efforts he would 
maintain may cause his hands to be imbrued in the blood of the demoralized and 
defeated armies of his countrymen? If by such propaganda American soldiers may 
be convinced that they are the victims of lawless and unconstitutional oppression, 
vain indeed will be the efforts to make their deeds rival the glowing traditions of 
their hero strain. On the contrary, the world will behold America's degradation 
and shame, the disintegration under tire of our line of Imttle, the inglorious flight of 
our defenders, lik,e the recent debacle of the Russian Armv, brought about by methods 
much the same, the ultimate conquest of our country, the destruction of its institutions, 
and the perishing of popular government on earth. 
The preliminary injunction is denied. 

The case of United States v. W. B. Tanner, in the District Court of 
the United States for the District of Colorado, was a charge by Judge 
Lewis to the jury, trying the defendant upon indictments under the 
espionage act. It does not, of course, appear in tliis charge, which 
was dehvered February 7, 1918, whether the defendant was con- 
victed or not, but the right of the jur}^ to convict the defendant upon 
the charge which involved the use of certain language was determined 
by the judge. There is quoted hereafter that part of the opinion 
which bears upon the questions involved. 

Charge to the Jury of United States District Court, District of Colorado, 
Relating to Section 3, Title I, of the Espionage Act (Act op June 15, 1917). 

In the District Court of the United States for the District of Colorado. United States 

r. W. B. Tanner. 

instructions to the jury. 

Lewis, District Judge; Gentlemen of the jury, you will return four verdicts, one on 
each of the counts in the indictment, each of the counts charging the defendant with 
the commission of a separate offense, for which he is now on trial. You may find him 
guilty on all four of these counts, and you may find him not guilty on all four of them; 
you may find him guilty on some and not guilty on others. In order that you may 
reach a proper and just verdict on each of the counts it is necessary that you consider 
and weigh not only the evidence in the case adduced before you on the trial, but that 
you have clearly in mind the law on each count which it is charged the defendant 
violated. Each count sets forth, in substance, the elements of the definition found 
in the law which it is charged the defendant violated. The first count charges that 
the defendant, in November last, at Sterling, Colo., ''did feloniously and willfully 
attempt to cause disloyalty, insubordination, mutiny, and refusal of duty in the 
military and naval forces of the United States, to the injury of the United States." 
It then charges how that attempt was made — ^in that the defendant, in the presence 
of Arch Monroe, Loyal J. Brown, and other persons, did state, in substance, "'There 
is no security behind the Liberty Bonds. The conservation of food is all bosh. As 
soon as the capitalists on Wall Street have all the money they want this war will be 
over in 24 hours." 

The second count sets forth the substance of another crime defined Ijy the same 
statute, and charges that the defendant, at the same time and on the same occasion, 
by uttering the same language, in substance, in the presence of the same parties, 
committed another and different offense, in that he ''did feloniously and willfully 
obstruct the recruiting and enlistment service of the United States, to the injury of 
the said ser^dce, and to the injury of the United States." 

The third count charges the defendant with having committed the same offense UlS 
charged against him in the first count, on another and different occasion, by the 
utterance of different language, and the charge is in that count that the defendant, in 
November, 1917, at Sterling, Colo., "did feloniously and willfully attempt to cause 
disloyalty, insubordination, mutiny, and refusal of duty in the military and naval 
forces of the United States, to the injury of the L^nited States," in that he did, "in 
the presence of Clarence Morgan. Carl J. Vagner, and divers other persons, * * * 
say, in substance: 

■'The liberty bonds will only be worth .50 cents on the dollar within two years. 
The first thing we ought to do right after Congress meets is to impeach that AVilson. 



24 SPEECH OF SEIs^ATOR EOBEET M, LA EOLLETTE. 

Talk about l)8iug under the Kaiser. Well, it is a whole lot worse over here in this 
country. England and France Avill be forced to quit. The United States will have 
to come down off her high horse."" 

The fourth count charges the defendant v/ith another and separate offense, the 
same character of offense as is charged in the second count, by the use of this same 
language charged to have been uttered in the presence of Morgan and Vagner, at the 
same time and on the same occasion as set forth in the third count, and the offense 
charged in that count is that the defendant "did feloniously and willfully obstruct 
the recruiting and enlistment service of the United States, to the injury of the said 
service, and to the injury of the United States.'" 

These charges closely follow and embody in substance the very language of the 
definition of the crimes as set forth in the act of Congress, and I read you the statute 
on which they are based. It is section 3 of the act of June 15, 1917: "\Mioever, when 
the United States is at war, shall willfully cause or attempt to cause insubordination, 
disloyalty, mutiny, or refusal of duty in the military or naval forces of the United 
States," shall be guilty of a criminal offense, and that is the offense charged against 
the defendant in counts 1 and 3. The same section defines another criminal offense, 
the one set forth and charged in counts 2 and 4 of the indictment, and that definition 
is set forth in the statute as follows: "Whoever shall willfully obstruct the recruiting 
or enlistment service of the United States, to the injury of the service of the United 
States," shall be guilty of a criminal offense. These words of the statute, embodied 
in both definitions, are ordinary words and simple in meaning. The first definition, in 
making it an offense to cause or attempt to cause insubordination, disloyalty, mutiny, 
or refusal of duty in the military or naval forces of the United States, is readily 
understood. The word "obstruct," used in the statute in the definition of the second 
offense therein set forth, is perhaps of broader significance. This word can be used 
to apply to different degrees of the same thought or idea. To obstruct means, in its 
broad sense, to hinder, to impede, to embarrass, to retard, to check, to slacken, to pre- 
vent, in whole or in part. As used in the indictment it means active antagonism to the 
enforcement of tlie act of Congress; that is, to effectually resist or oppose the command 
of the law, to the injury of the service or of the United States, or by acts or words 
to intentionally cause others to do so. It means to interfere or intermeddle in such 
a wa}^ to such an extent as to render more Ijurdensome or difficult the enforcement 
and execution of the law, to the injury of the service or of the United States. 

Your attention has been called in the argument to the constitutional guaranty of 
free speech, but you are instructed that this guaranty can not be successfully invoked 
as a protection where the honor and safety of the Nation is in\olved. xVnd this statute, 
which the indictment charges the defendant violated, is a constitutional and proper 
enactment to safeguard the national honor and safety. 

The balance of the opinion is taken up Avith instructions to the 
jury as to the weight of evidence, the necessity of proving the de- 
fendant guilty, heyond a reasonable doubt, of intent, and other 
matters Avhicli tlo not bear upon the k^gal question involved. Of 
course, it is necessary for the Government to prove, beyond a reason- 
able doubt, not onh- the utterance of the language, but the intent 
Avith which the language was uttered. 

These questions, of course, are questions for the Senate to decide. 
And the Senate may decide whether the language is in violation of 
law, but the authorities cited are entitled to great weight upon this 
question. 

In the case of United States v. Perley B. Doe, in the United States 
District Court of Colorado, the defendant was charged with making 
certain false statements and sending them out in the form of an 
endless chain, requesting the person to whom it was sent to send at 
least one copy to his friend. 

Attention is called to the fact that the person to whom this was 
addressed was referred to Senator La Follette's speech of April 4, 
1917, for an adequate statement of the diplomatic notes which led 
to war. There is quoted herewith tlie entire opinion of Judge 
Lewis : 



SPEECH OF SENATOR EOBEKT M. LA FOLLETTE. 25 

Charge to the Jury of United States District Court. District of Colorado, 
Relating to Section 3, Title I, and Sections 1 and 3, Title XII, of Espionage 
Act (Act of June 15, 1917). 

In til ■ District Court of the United States for the District of Colorado. United 

States r. Perley B. Doe. 

INSTRUCTIONS TO THE .lURY. 

Lewis, District Judge: Gentlemen of the jury, the defendant is on trial under two 
indictments returned by the grand jury, each charging him with the commission of 
three separate criminal offenses, to all of which he has plead not guilty. Each of 
the counts, six in all, deals with a circular which the defendant had printed, and 
which he sent forth through the United States mails, a copy of which has been intro- 
duced in evidence and read to you. Each count, while based upon the same circular, 
sets forth the charge of a different criminal offense. In the first case, which is No. 
3105 on the docket, the three offenses which the defendant is charged to have com- 
mitted in the three counts in that indictment, are all defined by section 3 of the act 
of Congress passed and approved June 15 last. We are not here to consider or deter- 
mine any other charges against the defendant except those for which he stands indicted. 
Those three offenses charged against him in case No. 3105 are all, as I have said, 
declared and defined by section 3 of that act, and it is impossible, as you readily 
appreciate, for you to determine whether or not he is guilty of any of those offenses 
so charged in indictment No. 3105 unless and until you clearly know the definition 
of those offenses. I will read that section in its entirety. 

"Sec 3. Whoever, when the United States is at war, shall willfully make or convey 
false reports or false statements with intent to interfere with the operation or success 
of the military or naval forces of the United States, or to promote the success of its 
enemies, and whoever, when the United States is at war, shall willfully cause or 
attempt to cause insuliordination, disloyalty, mutiny, or refusal of duty, in the mili- 
tary or naval forces of the United States, or shall willfully (whoever is implied) obstruct 
the recruiting or enlistment service of the United States to the injury of the service 
or of the United States, shall be punished by a fine of not more than $10,000 or 
imprisonment for not more than twenty years, or both. " 

Now, as has been said to you, this was a war measure, a war statute. . War had been 
declared against the Imperial German Government. It had been declared by the 
only recognized l)ody under the Constitution of the United States which could declare 
it. Congress liy that Constitution is empowered to declare war, to raise armies, to 
draft men to constitute armies, to support them and put them in the field, and to 
carry on the war. This statute is a statute in aid of that prime general purpose. 

I have said to you that tliis section which I have read defines three separate and 
distinct offenses; and the first count in case No. 3105 charges the first offense defined 
in that section. I read you the definition of that first offense — that is, I now repeat 
separately the three separate definitions of the three separate offenses declared and 
defined by section 3. This first count charges the commission of the first offense 
defined in section 3. "Whoever, when the United States is at war, shall willfully 
make or convey false reports or false statements with intent to interfere mth the 
operation or success of the military or naval forces of the United States, or to promote 
the success of its enemies. " shall 1)e guilty of a criminal offense. So this first count 
in the indictment charges that the defendant, Perley B. Doe, on November 26 last, 
in the district of Colorado, the United States then and there being at war with the 
Imperial German Government, "did knowingly, unlawfully, and feloniously willfully 
make a certain false statement, with intent to promote the success of an enemy of 
the United States, namely, the Imperial Gierman Government, which said false 
statement is in words and figures as follows, to wit: 

"In his war message, April 2. Wilson spoke of Germany's "promise' to end the 
U-boat warfare. At Madison Barracks Lansing said: 'The immediate cause of war 
was the announced purpose of Germany to break its promise as to submarine warfare. ' 

"Germany never made any such promise. In the note of May 4, 1916, containing 
the so-called promise; Germany carefully stated that as to the future she must 'reserve 
itself complete liberty of decision. " 

"For brief ):>ut adequate statement of diplomatic notes that led to war send to your 
Congressman for La Follette's speech of .Vpril 4. 1917, which was suppressed. 

"Endless (;hain. Please write at least one copy and send this and that to friends of 
immediate peace . " ' 

Then this lirst count charges that the defendant deposited that circular in the post 
office, to be delivered to the "■Lutheran Church. South Lo<,^an and Dakota Streets. 



26 SPEECH OF SENATOR ROBERT M, LA FOLLETTE. 

Denver. Colo.," and that he deposited like circulars in the post office addressed to 
"divers persons to the grand jurors unknown." Now, the only question you have 
for determination is whether or not the defendant is guilty of the offense charged 
against him in that count. You ol>serve that the indictment follows, as it must, the 
definition of the offense set out in the statute, and contains all of the elements of that 
offense. It charges that the defendant feloniously and willfully did make a certain 
false statement, and that he made that false statement with intent to promote the 
success of an enemy of the United States, to wit, the Imperial German Government. 
Now, before you can lind the defendant guilty on that count you must believe from 
the evidence, beyond a reasonable doubt, that he did, as charged in that count, in 
November last, while the United States was at war with the Imperial German Govern- 
ment, knomngly, feloniously, and willfully make a certain false statement, to wit, 
the statement contained in the circular; and that he did it with intent to promote 
the success of an enemy of the United States, to wit, the Imperial German Govern- 
ment. The elements of that offense are that the defendant knowingly and willfully 
made a false statement, and that he knew it was false; that he willfully made it: 
that he made it with intent to promote the success of an enemy of the United States, 
to wit, the Imperial German Government. 

Even though you may find that the statement was false, yet if you do not believe 
from the evidence, beyond a reasonable doubt, that the defendant made it with 
intent to promote the success of the Imperial German Government, our then enemy, 
you could not find him guilty. And even though you may find that he made it with 
intent to promote the success of our enemy, the Imperial German Government, yet 
if you could not iind beyond a reasonable doubt the other element, to wit, that the 
statement was false, you could not find him guilty, because there are two elements 
constituting that offense. Let me repeat that. If you find and believe from the 
evidence, beyond a reasonable doubt, that the defendant, in November last, did 
knowingly, feloniously, and willfully make a false statement, to wit, the statement 
contained in the circular letter, and that he made it with intent to promote the success 
of the Imperial German Government, with whom we were then at war, you will return 
a verdict of guilty against him on the first count. Otherwise you will not find him 
guilty on that count. 

Now, the second count in the indictment charges the defendant with ('f)mmitting 
the second offense defined by section 3. That offense is defined in this language: 

'■Whoever, when the United States is at war. shall willfully cause or attempt to 
cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval 
forces of the United States, shall be guilty of a criminal offense. Now. this second 
count charges that the defendant, in November last, at Denver, Colo., while the 
United States was at war ^viih the Imperial German Government, "did feloniously 
and willfully attempt to cause disloyalty, insubordination, mutiny, and refusal of 
duty in the military and naval forces of the United States, to the injury of the United 
States.' Then it tells how he did that. It was necessary to set forth how he did it, 
because the law requires that he be advised in that respect, and it says: "In that he, 
said Perley B. Doe, did then and there deposit and cause to be deposited in the post 
office of the United States' this circular letter, which is the same circular letter referred 
to in all of these counts. So we come back again to the statute. This count charges 
that he mailed that circular to the Lutheran Church, South Logan and Dakota Streets, 
and to divers other parsons to the grand jurors unknown. This count follows the defi- 
nition of the statute, and we will look at the definition again. .\11 its elements are in 
that count. Whoever, when the United States is at war, shall willfully cause or 
attempt to cause (this charges that he attempted to cause ) insubordinatif)n, disloyalty, 
mutiny, or refusal of duty in tlie military or naval forces of the United States.' shall be 
guilty of a criminal offense. Now, it is for you to determine from all the facts and 
testimony in this case whether or not the Government has established that charge. 
We are not trjdng this man for anything on earth except what is charged against him 
in this case, and you can not render a true verdict unless you put your minds on the 
charge, and find your verdict by determining whether or not he is guilty or not guilty 
of the specific thing charged against liim. If you find and l)elieve from the evidence, 
beyond a reasonable doubt, that the defendant did, in November last, at Denver. 
Colo., while the United States was at war with the Imperial German Government, 
feloniously and willfully attempt to cause disloyalty, insubonlination, mutiny, and 
refusal of duty in the military and naval forces of the United States, to the injury of 
the United States, in depositing this circular in the post office, directed to the Luth- 
eran Church named in this count, and to divers other persons, you will return a V(}rdict 
of guilty against him on that count: otherwise you must acquit him on that count." 

Now, you will notice that this crime does not require that disloyalty. insubcTdiua- 
tion, mutinv, or refus'al of dutv in the militarv and naval establishment of the LTnited 



SPEECH OF SENATOR EGBERT M. LA FOLLETTE. 27 

States was actually brought about. The crime as dehued is that 'Whoever, when the 
United States is at war, shall willfully cause or attempt to cause insubordination, 
mutiny," etc. So the thing for you to determine on that count is whether or not the 
defendant, in placing that circular in the post ofhce at Denver, was willfully attempting 
to cause insubordination, disloj^alty, mutiny, or refusal of duty in the military or naval 
forces of the United States. If you have a reasonable doubt on that question you must, 
give the defendant the benelit of it, and acquit him. I take it that these words used 
in the statute, in so far as your attention has been called to them, to wit, insubordina- 
tion, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United 
States, are plain, well understood, common, ordinary, everyday vrords. and need no 
definition. 

Now, the third count in this indictment. No. 3105, charges the third offense dehned 
by section 3. That third offense is: Whoever "shall willfully obstruct the recruiting 
or enlistment serAdce of the United States, to the injury of the service or of the United 
States," shall be guilty of this offense and punished accordingly. This third count 
charges that the defendant, in November last, at Denver, while the United States 
. was at war with the Imperial German Government, did feloniously and willfully, 
following the language of the statute, ''obstruct the regruiting or enlistment service 
of the United States, to the injury of the United States, or of said service." And this 
third count says that he, the said Perley D. Doe. did deposit this circular in the post 
office as charged in the other counts. 

Now, I want to draw your attention sharply to the difference in the fundamental 
elements of these three separate offenses defined in this section. The first one, as 
you recall, makes it an offense to willfully make or convey false reports or false state- 
ments with intent to interfere with the operation or success of the military or na,val 
forces of the United States, or to promote the success of its enemies. Now, the physical 
act in that definition is to willfully make or convey false reports or false statements, 
and it adds the other element, with intent to promote the success of its enemies. The 
second offense reads: "Whoever, when the United States is at war, shall willfully 
attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military 
or naval forces of the United States." Now, these two offenses, as thus defined, are 
not as fixed and rigid in their fundamental elements as the last one. Going back, the 
first one is the willful making or conveying of false reports or statements with intent 
to accomplish a certain object; the second is willfully attempting to cause insub- 
ordination, disloyalty, and so forth. Now, the third is, whoever "shall willfully 
obstruct." What does that mean? Obstruct the recruiting or enlistment service 
of the United States, to the injury of the service or of the United States. To obstruct, 
in its broad sense, means to hinder, to impede, to embarrass, to retard, to check,_ to 
slacken, to prevent, in whole or in part. As used in this indictment it means active 
antagonism to the enforcement of the act of Congress. That is, to effectively resist 
or oppose the command of the law, to the injury of the service or of the United States, 
or by acts or words to intentionally cause others to do so; to interfeije or intermeddle 
in such a way, and to such an extent, as to render more burdensome or difficult the 
enforcement and execution of the law, to the injury of the service or of the United 
States. 

Now, before you can find the defendant guilty on the third count you must find 
and believe from all the evidence, beyond a reasonable doubt, that he did, in Novem- 
ber last, deposit in the post office at Denver, while the United States was at war with 
the Imperial German Government, this circular letter, and that in doing so he did 
feloniously and willfully obstruct the recruiting and enlistment service of the United 
States, to the injury of the service and to the injury of the United States. If you 
so find, beyond a reasonable doubt, you will return a verdict of guilty against hini 
on that count. If you do not so find, beyond a reasonable doubt, you must acquit 
him on that count. 

Those are all the offenses charged in case No. 3105. 

Now, the three offenses charged in case No. 3106 are offenses that are defined by two 
separate sections of this same act. It is necessary to consider the two separate sections 
in order to determine whether or not the defendant is guilty as charged in case 3106. 
Those two separate sections — I might say there are three sections to be considered — 
are section 3, which I haA'e already called your attention to, and sections 1 and 3 
later on in the same act, under title 12. This title 12, I might say, deals with the 
question of nonmailability of letters, post cards, or circulars that have been used to 
accomplish a violation of the act in some other respect. Section 1, title 12, says 
that such letters and circulars are nonmailable, and anyone who puts them in the 
United States mails commits a criminal offense. Now, I will read it to you. 

"Section 1. Every letter, writing, circular, postal card, picture, print, engraving, 
photograph, newspaper, pamphlet, book, or other publication, matter, or thing, ot 
any kind, in A'iolation of any of the provisions of this act (I think the word '"used" 



28 SPEECH OF SENATOR .EOBEET M. LA POLLETTE. 

is implied, that is, used in violation of) is hereby declared to be nonmailable matter 
and shall not be conveyed in the mails or delivered from any post office or by any 
letter carrier * * *. 

"Sec. 3. Whoever shall use or attempt to use the mails or Postal Service of the 
United States for the transmission of any matter declared by this title to be nonmail- 
able, shall be fined not more than $5,000 or imprisoned not more than five years, or 
both. Any person violating any provision of this title may be tried and punished 
either in the district in which the unlawful matter or publication was mailed, or to 
which it was carried by mail for deliveiy according to the dii-ection thereon, or in 
which it was caused to be delivered by mail to the person to whom is was addressed." 

Now, in this case there are three counts, and they correspond with the three counts 
in the first case. That is to say, in the second case the first count is a charge, in 
general language, that this circular letter, this same circular letter, was a false report 
or false statement, and that it was made or conveyed with intent to interfei'e with 
the operation or success of the miUtary or naval forces of the United States, and to 
promote the success of the Imperial German Government; that on that account 
that circular was nonmailable matter; that it was mailed by the defendant, and 
that being nonmailable matter it was a criminal offense for him to put it in the post 
office at Denver. Now I will read this count a little more fully, so you can get the 
phraseology. That the defendant, in November, 1917, at Denver, "did knowingly, 
willfully, unlawfully, and feloniously use the mails and Postal Service of the United 
States for the transmission of certain nonmailable matter, that is to say, that he, 
said Perley B. Doe, did then and there deposit in the post office of the United States 
at said city and county of Denver for mailing and delivery l^y the post office estab- 
lishment of the United States a certain circular, which said circular was then and 
there inclosed in a sealed white envelope, duly stamped, and addressed as follows, 
to wit: Lutheran Church, South Logan and Dakota, Denver, and certain other 
circulars addressed to persons to the grand jurors unknown, which said circular and 
circulars were in words and figures" as follows, to wit: Then the indictment sets 
out that same circular which has been read to you — one circular in all of these six 
charges. Then it goes on, ''and that he, said Perley B. Doe, when he so used the 
mails and Postal Service of the United States, as aforesaid, then and there and thereby 
intended to make and circulate,'" and so forth. Now we are getting back to the 
definition in section 8. The statute says, "or convey," the indictment says, "to 
make and circulate," a false statement. So that you see how one indictment is 
necessarily involved in the other. 

Now the second count in this case. No. 3106, charges the maihng of this same 
circular; that it was nonmailable matter when the defendant mailed it, and that 
he violated this section of the statute which I a moment ago read to you; that the 
way it became nonmailable matter was the fact that it was being used to commit 
the second offense defined in section 3 — that is, to carry out an attempt to cause 
insubordination, disloyalty, mutiny, or refusal of duty in the military and naval 
forces of the United States. So it charges that the defendant, in November last, 
at Denver, did knowingly, \villfully, unlawfully, and feloniously use the mails and 
Postal Service of the LTnited States for the transmission of certain nonmailable matter ; 
that is to say. that Perley B. Doe did then and there deposit in the mails this same 
circular, addressed to the Lutheran Church, and certain other circulars addressed 
to persons to the grand jurors unknown; and that the said Perley B. Doe, "when 
he so used the mails and Postal Service of the United States, as aforesaid, then and 
there and thereby intended to cause (the statute says attempt to cause) disloyalty, 
insubordination, mutiny, and refusal of duty in the military and naval forces of the 
United States, the LTnited States then and there being at war with the Imperial 
German Government." 

Now, the third count takes up the thii-d count in the other indictment in the same 
way. That count, you remember, charged that the defendant willfully obstructed the 
recruiting and enlistment, and that he did it by depositing this circular in the mails, 
as charged in the indictment. So this third coiuit says that the defendant, in No- 
vember last, ''did knowingly, willfully, unlawfully, and feloniously use the mails 
and Postal Service of the United States for the transmission of certain nonmailable 
matter," that is to say. "'that he put this same circular in the post office, directed to 
the Lutheran Church and to divers other persons;" and that he, said Perley B. Doe, 
when he so used the mails and Postal Service of the LTnited States, as aforesaid, then 
and there and thereby intended to obstruct the recruiting and enlistment service of 
the United States, to the injury of said service and to the injury of the United States, 
the United States then and there being at war with the Imperial German Govern- 
ment. So it necessarily follows that if you found the defendant not guilty on all 
three counts in the first indictment, 3105, you would have to find him not guilty on 
all of the counts in 3106. because 3106 is dependent upon 3105. if he used the circular 



SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 29 

to commit the offenses charged in 3105. Unless it was used lor that purpose it would 
not be nonmailable matter. Therefore if you find the defendant not guilty in 3105 
and all the counts in it, I assume that necessarily yoii will find him not guilty on all 
counts in 3106. On the other hand, if you find him guilty on all the counts in 3105, 
you may also deem it your duty to find him guilty on all the counts in 3106. 

I want to read to you this sta.tute again. My sole purpose is to aid you, gentlemen 
of the jury, in returning a verdict in this case on each of these counts in accordance 
with the law and the facts, as your oath binds you to do. So I will read you section 3 
again: ''Wlioever. when the United States is at war. shall willfully make or convey 
false reports or false statements with intent to interfere with the operation or success 
of the military or naval forces of the United States or to promote the success of its 
enemies," shall be guilty of a criminal offense, ''and whoever, when the United 
States is at war, shall willfully cause or atternpt to cause insubordination, disloyalty, 
mutiny, or refusal of duty in the military or naval forces of the United States," shall 
likewise l)e guilty of a criminal offense, and whoever "shall willfully obstruct the 
recruiting or enlistment service of the United States, to the injury of the service or of 
the United States," shall V)e guilty of a criminal offense. And I repeat that you can 
not find a true verdict on any of these counts unless you ))ear distinctly in mind, in 
each instance, the particular definition found in the statute of the different crimes 
with which the defendant is charged. These counts, in each instance, use sub- 
stantially the words of the statute defining these three separate offenses. 

The defendant is presumed to be innocent of each and all offenses charged against 
him, and this presumption abides with him as his protection and shield until it is 
overcome by the evidence in the case, and until you are convinced, beyond a reason- 
able doubt, of his guilt. He is not called here to establish his innocence. The burden 
is on the Government to establish his guilt. This reasonable doubt, if it exists, 
must be founded on the evidence in the case, or lack of evidence. It does not mean 
the mere possibility of innocence. If after a fair and impartial consideration by you 
of all the testimony in this case you can not say to yourselves, under your oaths, that 
you are satisfied of the defendant's guilt, then you have a reasonable doubt and you 
must acquit him. But if, on the contrary, the evidence is such that after a fair and 
dispassionate consideration of all the testimony in the case you can then say to your- 
selves that you haA'e an abiding conviction of the defendant's guilt as charged, then 
you have a reasonable doubt, and you should return a verdict of guilty. 

Now, you are the sole judges of what the facts are, and you determine what the 
facts are from the evidence in the case. The com't is the sole judge of what the law 
is that is applicable for your consideration to this case. Neither court nor jury has 
anything to do with the supposed propriety or impropriety of the law itself. Power 
was given Congress to enact the statute, and it is not for the court or jury to question 
its propriety. But the province is solely with the court and jury to consider that 
law, and to apply that law, as enacted by Congress, to a particular case. That is all 
we are here for. Congress has enacted the statute. It is in general terms. We have 
a case presenting certain facts for your consideration, and it is necessary that you 
consider those facts, and also the statute, in determining whether or not that law has 
been violated. So, in reaching a conclusion in that respect, the court interprets, for 
your guidance, the statute; and taking that interpretation ycu lay it alongside the 
evidence and ajjply that law to this case. That is all we are doing here. If you find 
under the interpretation that the court is giving you of this statute, and the facts 
in this case, the defendant has not violated this statute, or either of them, or if you 
have a reasonal)le doubt on the question, you must find the defendani, not guilty. 
You are the sole judges of what the facts are. You find out v/hat those facts are by 
considering solely the evidence in this case, and from that evidence you determine 
whether or not the facts in this case bring it within this statute. Thus, after having 
considered the law and the facts, if you reach the conclusion that the defendant is 
guilty as charged on all or any of these counts, it will he your duty to find him guilty 
and to so state in yoiu" verdict. You will be required to retm-n a Aerdict on each of 
these six counts, three in each case. You may find him guilty on all of them; you 
may find him not guilty on all of them ; you may find him guilty on some and not 
guilty on others; just as you, under your oaths, find the facts to l)e according to the 
rules of law that I have given you. Therefore, in 3105 there are six forms of verdict, 
two on each count, one guilty and one not giulty. Likewise in 3106 there are six 
forms of verdict, two on each count, one giulty and one not guilty. You will return 
a verdict on each six counts, and when you ha^^e agreed on your six verdicts your 
foreman, whom you will select, will sign them and you will bring them into covu't. 
If you do not agree before the adjourning horn", you can seal yoiu- verdicts when you 
do agree, and then the bailiff Avill permit you to separate, and we will receiAe your 
verdicts to-morrow morning. 

(Kebriiary 5, 1918.) 



30 SPEECH OF SENATOR EGBERT M. LA FOLLETTE. 

The next case is a charge to the jury by Judge Riner of the United 
States District Court of Colorado in the case of United States v. 
William Hulm. The date of dehvery is not given, but the opinion 
comes from the bulletin pubUshed by the Department of Justice. 
The entire opinion is quoted without comment. 

Charge to the Jury of the District Court of the United States for the 
District of Wyoming, Relating to Section 3, Title I. of Espionage Law 
(Act of .June 15. 1917). 

[Note. — The charges against the defendant were based upon alleged statements 
which may be summarized as follows: That the American people should. not believe 
anything contained in the newspapers published in English in the United States; 
that the said newspapers were full of lies about the war and about Germany; that 
the only true facts published in newspapers of this country were in the newspapers 
published in the German language; that President Wilson had been in favor of the 
allies ever since the war commenced in 1914; that President Wilson had been paid 
huge sums of money for aiding the allies; that President Wilson had gone into the 
war for a huge sum of money; that the people of the United States were not fighting 
this war for their own country, but for the millionaires and the rich people; that 
President Wilson had never intended to have any war with Mexico or to use any 
troops in this countiy, but that the American Army had been gathered at the border 
between Mexico and the United States solely for the purpose of training them to fight 
against Germany; that the United States, even with the aid of all the European 
countries, could never defeat the German Army; that Germany is right in its con- 
tentions and that the United States is wrong; that the United States has no right to 
send the troops to Euroi^e; that draft riots will occm*; that if he were a young man 
he would cut his trigger finger off before he would go to fight the Germans.] 

In the District Court of the United States for the District of Wyoming. The United 
States r. William Huhn. No. 812. Instructions to the jury. 

Riner, District .Judge: Gentlemen of the jury, this indictment was drawn under 
an act of Congress approved June 15, 1917, commonly known as the espionage act. 
The indictment is in 11 counts. The court has heretofore sustained a motion to quash 
the first five counts. You ■will therefore confine yourself to a consideration of the 
evidence applicable to the counts numbered 6. 7. 8, 9, 10, and 11 only. 

In the third section of the statute under which the indictment is drawn we find 
this language: "\\Tioever. when the United States is at war, shall willfully cause or 
attempt to cause insubordination, disloyalty, mutiny, or a refusal of duty in the 
military or naval forces of the United States, shall be punished ' ' as provided in the 
statute. 

In the sixth count of the indictment it is alleged that the United States, being then 
and there at war with the Imperial German Government, pursuant to a resolution of 
the Congress of the United States, approA-ed liy the President April 6, 1917, the 
defendant, William Huhn, did then and there, within the district of Wyoming, un- 
lawfully, knowingly, and \villfully cause and attempt to cause insubordination, dis- 
loyalty, mutiny, and refusal of duty in the military and naval forces of the United 
States by means of words and statements then and there publicly uttered. Then 
follows the exact language used. 

In the seventh count, like in the sixth, the indictment sets out that the United 
States of America, being then and there at war with the Imperial German Government, 
charges the defendant with unlawfully, knowingly, willfully, and feloniously causing 
and attempting to cause insubordination, disloj^alty, mutiny, and refusal of duty in 
the military and naval forces of the United States l^y means of words and statements, 
it is alleged, uttered and spoken to one EdAvard Crandall. Then follows the language 
which is set out at length in the indictment, which it is charged he used. 

The eighth count is like the seventh. It charges the defendant with the same 
offense, differing only in that the language was addressed to one Eaymond Wilson. 
The actual language used varies in some respects from that set out in the seventh 
count, Ijut I do not deem it necessary to repeat it or call attention to the distinction, 
as you will have the indictment and can read the language in each of these counts. 

The ninth count is like the seventh and eighth, except that the language was ad- 
dressed to one Adam Darling, and the statements addressed to him differ in some 
respects from the statements alleged to have been made to the others. 

The tenth count is substantially the same as the seventh, eighth, and ninth coimts, 
except it charges that the language therein set out was addressed to one Howard 
Schriver, 



SPEECH OF SENATOR ROBEKT M. LA FOLLETTE. 31 

The eleventh count differs from the others to which 1 have called your attention. 
and is based upon another provision of this same section 3 of the act of June 15, 1917, 
which reads as follows: "Or shall" (meaning or whoever shall) "willfully obstruct 
the recruiting or enlistment service of the United States" shall be punished as pro- 
vided in the statute. 

This last count of the indictment, after setting out in suljstantially the same form 
as the others that the United States being at war Avith the Imperial German Govern- 
ment, then charges that the defendant did then and there, within the district of 
Wyoming, unlawfully, ^villfully, and feloniously obstruct the recruiting and enlist- 
ment service of the United States to the injury of the service and to tlie injury of the 
United States, by certain words and statements then and there publicly uttered and 
spoken, then setting out in detail the language alleged to have been used by the 
defendant. 

This is a criminal case and the l>urden and duly rests upon the Government to prove 
the material allegations of the indictment beyond a reasonable doubt. The term 
reasonable doulit as used in the law may be dehned as not a mere possil>le or imaginary 
doubt, because everything relating to human affairs and depending upon moral evi- 
dence is open to some possible or imaginary doulit. It is that state of the case where, 
after a thorough and careful examination of the evidence, your minds are left in that 
condition that you can not say you have an abiding conviction, amounting to a moral 
certainty of the truth of the charge as laid in any count of this indictment. In other 
words, it is an honest doubt arising in your minds, aftev a careful and thoughtful con- 
sideration of all of the e^ddence given on the trial of the rase and arising out of the 
evidence. 

The defendant in this case enters upon the trial with the presumption of innocence 
in his favor, and that must be allowed to follow him through the course of the trial 
until it is overcome by evidence which satisfies your minds beyond a reasonable 
doubt \vithin the definition I have just given you. This provision of the law is not 
intended to aid those who A'iolate the law to escape from the results which follow 
such violation, but is a humane provision of the law calculated and intended to pro- 
tect the innocent from unjust punishment. You are the judges, the sole and exclu- 
sive judges, of the weight of the evidence and the credibility of all of the witnesses. 

In determining what weight you should give to the testimony of each witness you 
may take into consideration not only what he said upon the udtness stand but all of 
the surrounding circumstances as disclosed by the evidence,, such, for examj^le, as 
his opportunity to know of the matters to which he has testified, his demeanor upon 
the witness stand, and any other matters which tend to throw light upon his testi- 
mony, and to give it such weight as you can say upon youi' oaths you believe it enti- 
tled to in \T.ew of all the facts and circumstances disclosed by the veidence at the 
trial. Under our law the defendant may testify as a mtness in his own behalf, at his 
request, but not otherwise. Hence it was that the court asked him if he desired to 
be sworn and testify as a witness in the case, and having answered this qiiestion in 
the affirmative the oath was administered and he was ])ermitted to give his testimony . 
His testimony, like that of other witnesses, is to be weighed and considered by you. 
and in determining what weight you will give his testimony you have the right to 
take into consideration his interest in the result of the trial. 

Upon the sixth and eleventh counts charging that the defendant publicly made the 
statements set out in these two counts of the indictment the court is of opinion that 
the evidence is not sufficient to warrant a verdict of guilty upon these two counts, as I 
do not recall any evidence tending to show that the statements therein charged, or 
any of them, were publicly made, but in each instance the conversations complained 
of were had privately with the persons named in the seventh, eighth, ninth, and tenth 
counts. You are therefore du-ected to return a verdict of not guilty as to the sixth 
and eleventh counts. The seventh, eighth, ninth, and tenth counts will be submitted 
for your consideration. The language of the statute upon which these counts are based 
is, in substance, as I have already suggested, that whoever, when the United States 
is at war, shall willfully cause, or attempt to cause, insubordination, disloyalty, 
mutiny, or a refusal of duty in the military or naval forces of the United States shall, 
upon conviction, be punished as provided in the statute. 

With the punishment you have nothing whatever to do. The law casts the burden 
upon the court to fix that in its discretion, ])y fine or imprisonment, within the limits 
fixed by the statute. 

The court takes judicial notice of the fact that a state of war existed between this 
Government and the Imperial Government of Germany on the 15th day of June, 1917, 
and from that date has continued to exist up to the present time, and you are so in- 
structed. 

You will note that the language of the statute is: "Wlioever shall willfully cause, 
or attempt to cause, insubordination, disloyalty, or refusal of duty in the military or 



32 SPEECH OF SENATOR ROBERT M. LA POLLETTE, 

naval forces of the United States. ''' By the act of May IS, 1917, known as the selec- 
tive draft act. Congress designated a class of persons, male citizens, between the 
ages of 21 and 31, from whom should be drawn an army for active service, and required 
that those coming within the provisions of the act should register as provided by that 
act and the regulations to carry it into effect. Considering the broad purposes "of the 
selective draft act, and considering the e^dls that were intended to be met by the 
statute under which this indictment was drawn, you are instructed that the words 
"militaiT forces-' as therein used is to be glA^en a broad rather than a narrow meaning, 
and held to mean not merely the men in active military serAdce but also men who had 
registered as required by law. 

We are confronted, then, with two important questions which you are to determine 
from the evidence: First, did the defendant make the statements, or any of them, 
with which he stands charged in these four counts of the indictment? If you find 
from the evidence that he did make the statements, or .some of them, then the ques- 
tion arises, for what purpose did he make them? Did he make them willfully in an 
attempt to cause insubordination or disloyalty? The court is of opinion, and so 
charges you, that intent is a material element of the offense, and that the intent with 
which the alleged act or words used is necessary to complete the offense; and it devolves 
upon the Government not only to establish beyond a reasonable doubt that the state- 
ments charged in the indictment were made by the defendant, but must also estab- 
lish beyond a reasonable doubt that he made them in an attempt to cause insub- 
ordination or disloyalty in the military forces of the United States, within the defi- 
nition of military forces I have given you. Upon the question of intent you are 
instructed that the law presumes that every person intends the natural consequences 
of his act knowdngly done; and in a case like the present case, in which a specific 
intent accompanjdng the act is a necessary element of the offense charged, the pre- 
sumption is not conclusive, but is jwobatory in character. It is to be considered by 
you in connection with all of the evidence given in the case, considering all of the 
circumstances as you find them from the CAddence, including the kind of person 
who made the declaration, if you find that the declaration was made, the person 
or persons who wei'e present and all the circumstances attending it, to the end that 
you may judge the real intent with which they were made. 

You may find from the facts and circumstances disclosed by the evidence, together 
with the language used, the intent, even though the intent was not directly expressed. 
In other words, you may infer the intent from the character and natural, ordinary, 
and necessary consequences of the act. It is not necessary to show that the state- 
ments made actually brought about insubordination or disloyalty, but it is quite 
sufficient to warrant a con\dction if you believe from the evidence beyond a reason- 
able doubt that the defendant niade the statements, or any of them, in an attempt 
to cause insubordination or disloyalty and with the intent to bring about that result. 
In other words, you can only generally determine what is in a person's mind by 
external manifestations, and in determining the question of intent of the defendant 
in this case, you haA-e a right to take into consideration not only the direct evidence 
bearing thereon, if any, but all the facts and circumstances surrounding the defendant 
in this transaction, so far as they may be disclosed by the evidence, including in 
this case the Avords that the eAidence shows Avere in fact actually used by the 
defendant. 

It may be well to here call your attention and explain the meaning of the words 
insubordination, disloyalty, mutiny, or refusal of duty u, ed in this 'statute. Insub- 
ordination means the failure on the part of persons in the military or naval forces 
of the United States to conform themseU'es to rules, laws, and the regulatione of the 
military and naval forces of the United States. Disloyalty means unlawful conduct — 
that is, Adolation of the laws, the rules, and the regulations of the military or naval 
forces of the United States or the carrying on of the war. It is unnecessary in this 
case to define nrutiny, as the eA'idence does not shoAV any substantial ground on which 
a finding in regard to mutiny could be established. Refusal of duty is another ex- 
pression found in the statute, and that means refusal to comply with the rules, the 
laws, and the regulations relating to the military and naval forces of the United 
States, or relating to the organization of the Army or NaA'y, or relating to the carrying 
on of the war — that is, no particular form of Avords or expressions are necessary to con- 
stitute an offense under this '^tatute: but you are to determine in this case, first, what 
the AVords were, it any, that were in fact uttered by the defendant at the times and 
places in question charged in the indictment, and then AA'h ether the defendant in 
making use of those Avords had the intent to produce disloyalty, or insubordination, 
or refusal of duty in the person or persons then present Avho were part of the military 
forces of the United States, as I have defined that term; and you are to consider the' 
eAddence, and the AA'hole of it. in considering whether the offense was committed bA' 



SPEECH .OF SENATOR ROBERT M. LA FOLLETTE. 33 

the defendaiit. If you find that an offense was committed by the defendant, within 
the rules of law I have given you, then your plain and bounden duty is to return a 
verdict of guilty upon the count or counts that you believe the Government has 
sustained by the evidence beyond a reasonable doubt. If you have a reasonable 
doubt of the defendant's guilt as to any of the counts, or all of them, it is equally 
your duty to say so by a verdict of not guilty. 

I think I have called your attention to the rules of law applicable to this case. I 
have not referred to the testimony in detail, for, as I stated to j^ou at the outset, you 
are the sole and exclusive judges of the weight of the evidence and the credibility of 
all of the witnesse=i, and the evidence has been, as I think, carefully and fairly dis- 
cussed by counsel. 

There is one thing to which I wish to direct your attention, however, that the 
offers of evidence which were ruled out by the court are not to be considered by you. 
The evidence upon which alone you must base your verdict is the evidence admitted 
by the court at the trial . 

The case is important to the defendant because he stands here charged with a 
serious offense against the United States, and if the evidence fails to convince you 
beyond a reasonable doubt that he is guilty, he is entitled to a verdict of acquittal 
at your hands. On the other hand, the case is important to the Government. The 
United States is at war. It is organizing military forces, and it demands that those 
forces and each member thereof shall give obedience, loyalty, and strict performance 
of duty to the Government; and it can not tolerate any attempt by anyone at any 
time or at any place to cause disloyalty, insubordination, or refusal of duty. Such 
attempts must be investigated by the Government, and if the investigation justifies 
it the party must be brought to trial, as the defendant has been brought to trial here:- 
and it is for you, gentlemen of the jury, applying to the evidence the rules of law I 
have given you, to determine in this particular case upon all the evidence in the 
case, whether the defendant is guilty or not guilty. You may find the defendant 
guilty upon one count and not guilty upon the others, or guilty upon all counts, or 
not guilty upon all counts, or any one of them, as you can say upon your oaths the 
evidence warrants. 

You will select one of your number foreman and have him complete the verdict 
by filling the blanks to conform with your finding and then sign it as foreman of the 
jury. 

In the case of United States v. Daniel H. Wallace, the decision is a 
charge to the jury by Judge Wade, of the District Court of the United 
States, Southern District of Iowa. There is omitted from the opinion 
the comments of the court upon the burden of proof and the necessity 
for the Government to prove the question beyond a reasonable doubt. 
There is quoted all of the opinion bearing upon the legal question and 
the language used by the defendant is contained: 

Instructions to the Jury in the District Court op the United St.'^.tes in and 
FOR the Southern District of Iowa, Relating to Espionage Act (Act of 
.Tune 15, 1917). 

In the District Court of the United States in and for the Southern District of Iowa, 
Daveiiport Division. October term, 1917. United States of America, plaintiff, v. 
DanioFH. Wallace, defendant. 

court's instructions to jury. 

Wade, District Judge: Gentlemen of the jury, on August 2, this year, 1917, 
Daniel H. W^allace, with five other persons, was indicted here in this court. This 
indictment was in four counts, the first count charging a separate crime, the second 
count a sejiarate crime, and the two last counts charging a conspiracy to commit 
these crimes. 

Now, the first count charges that Daniel H. Wallace about the 25th day of Jul y — it is 
important to keep these dates in mind for certain reasons which you will see "later — 
in the year of our Lord 1917 [reading first count of indictment charging Wallace with 
causing, or attempting to cause, insubordination, disloyalty, etc.] 

Now, that is one of)"ense charged in the first count of the indie tment . The other is in 
practicall}^ the same language emphasizing the fact that this address was held and 
stating that by doing so he did unlawfully, feloniously, and willfully obstruct the re- 
cruiting and enlistment service of the l'nit(>d States. Those are the two coimts ui)on 

51951—18 3 



34 sfp:eci-i of srnatok Robert m. la follette. 

which the defendant is upon trial: the other two cotints. 3 and 4, conspiracy counts, 
have not been attempted to be pi>roven and they will be nolled. 

Now, the first thing that is important in a jiu'y trial, I think, in the final submission 
of it, is that we shall try and simplify the case as much as possible, so that we ^nll 
not have any misunderstanding of what it is about. Sometimes, through a long 
day of trial, certain elements seem to develop, either accidentally or intentionally, 
which lead men to sometimes to believe that that particular matter is very important 
in the case when it doesn't mean anything at all to you. I want you to understand, 
gentlemen, that we are not trying the question as to whether or not a newspaper 
tells the truth; we are not trying here the question as to whether Germany is bnital 
or not. or whether England is worse then Germany. We have got a very simple 
question to tiy here, and I want to get your mind on the real question that you have 
got to determine. You have to determine what this man .said down there at the 
hall that night and why he said it. That is all that you have got to determine in this 
case, and that is all you have got to find in this case. ^Tiat did he say, and why? 
We have heard a good deal said in this lawsuit-^we hear it now a good deal- -about the 
liberty of speech, and I want to tell you about that, so that you men may not have 
any misconcejjtion about it. The Constitution of the United States says that Congress 
shall make no law abridging the freedom of speech or of the press, and the constitution 
of Iowa proWdes that every person may speak, write, and publish his sentiments 
on all subjects, "being responsible for the abuse of that right." That langnage is 
not in the Constitution of the United States, but they both mean exactly the same 
thing. 

The right of freedom of speech is so sacred, and it had been so much abused in the 
bitter days before the establishment of this Government, that in the fundamental 
law they protected the right of free speech; but no constitution, no law, no congress, 
and no legislature evei said that a man could say anything that he wanted to and not 
be responsible for what he said. The man who calls you a thief and the man who 
assaults your wife's virtue in the streets is exercising his right of free speech under 
the Constitution, but you can compel him in court to respond in damages for this in- 
vasion of your rights. The man who publishes in the newspaper, under the freedom 
of the press, a base libel against you or your family is exercising his right under the 
Constitution, but he can be hauled into court and be compelled to pay his last penny 
for the wrong he has done you, and he can be indicted by the grand jury of the proper 
jurisdiction and be sent to prison for the publication of it. We ought not to have any 
misconception about this matter of the right of free speech. Men have the right to 
speak, no matter how bad it is, but they are responsible to the law for the consequences 
if they have invaded a man's right or Aiolated the law defining a crime. And so, 
as to this case, there is testimony offered here to show that this man made a speech 
some 150 times. Up to June 15 this year, whether we consider this speech as violating 
every rule of decency, or whether we consider it entirely proper, there was no power 
under the law of the United States to punish him. Up to that time he had the right 
of freedom of speech — he has it yet — he had it here that night. He is not being tried 
here for violating any law with relation to the freedom of speech except with reference 
to this one specific thing. Before this law was approved, June 15, 1917, there wasn't 
any law under which this man (outside of possible suits for injuries, if any person was 
injured — if he was sued for slander) could be indicted for what he said; but on June 
15 a new law was passed, absolutely new to this generation at least, and, so far as I 
know, new in the history of the country. Why? Because this countiy had reached 
the most tragic time in the history of the Nation. Because we had, by a vote of the 
proper constitutional authority — the Congress of the United States — announced the 
existence of a state of war with Germany. From that moment Germany was our 
enemy. It don't make any difference whether she was vii-tuous or vicious, she will 
be our enemy until this war is over, and the American people naturally must treat 
her as an enemy. 

Now, the fortunes, or the fates, compelled us — at least it was so recognized by the 
proper authorities — and I am speaking about matters of common knowledge of which 
you have a right to take notice— has placed us side by side in this conflict with Eng- 
land, France, and Italy, with whom we are from force of circumstances, as we view 
it at the present time at least, compelled to cooperate in this conflict. I want you to 
get the background at the time this speech was made, and I want you to consider the 
circumstances under which it was made. I want you to consider the real elemental 
problems that the American people had at that hour and have yet. Now, Congress 
felt that in order that we might prosecute this war properly and with honor that there 
must be some law protecting, or rather, prohibiting, anyone who for any reason or 
motive, no matter what, whether it be for real injuries he received at the hands of 
those people, no matter what, prohibiting every man from in any manner attempting 



SPEECH OF SENATOR ROBERT M. LA FOLLETTK. 35 

to weaken the thing, the forces which the Government has to rely upon in this war. 
It is evident, of course, that that first means men, then money, and then care of the 
men; and you have a right to take notice of the fact that in the organization of the 
A^rmy, in the raising of the money, and in the care of the men, because these are all 
matters of common knowledge, that certain organizations were used, utilized, and 
relied upon, including the Y. M. C. A. and the Red (Jross. We had to have men; 
we had to have money; and to get men and money we had to have the proper spirit. 

Well, Congress decided that they would try to prohibit the invasion of the right to 
these things by certain laws, and among other things it prohibited two things — things 
which Congress said constituted a crime. It did not say, You shall not speak; but 
it did say. If you do speak with a certain purpose and in language which would natu- 
rally be effective for canying out that purpose, you shall be punished. In other 
words, it placed upon every citizen in the United States, whether he be a citizen of 
the United States or of some other country, the duty of sacrificing for the time being 
his right to free speech or else suffer the consequences. And so, Congress passed a 
law that "whoever, when the United States is at war, shall willfully cause or attempt 
to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or 
naval forces of the United States" shall be punished. Now, it doesn't say that it 
must be by speech, but it may be by word or act or print, or in any other way. That 
provision of that law is involved in this case. And Congress further enacted that 
"whoever shall willfully obstruct the enlistment or recruiting service of the United 
States to the injury of the United States" shall be punished. Now, that law isn't 
very difficult to understand. 

This indictment here in the fu-st count is based upon an alleged violation of the 
restriction I have read first to you, and the second count upon the restriction I read 
second. So, that I say, as I said when I started out, the simple question in this case 
is what did this man say down there that night? And why did he say it? Now, 
experience in life teaches us that ordinarilj^ when men do things knowingly, delib- 
erately, there is some purpose. Now, the purpose and the intent become a material 
matter in this case, and to judge of the purpose and intent, which are largely a matter 
of mind and heart, you have got to be guided pretty largely by a man's acts in this 
world. You have got to look down into the heart and see what a man has there. 
It isn't always safe to let him determine by Ms statement what his intentions were. 
The law does permit him to go upon the stand and tell what his intentions were, but 
the jury is not Ijound 'oy that al^solutely. You have a right to consider it, give it the 
proper weight, together with ell the other evidence, and determine what his intention 
was and what was his purpose. So, now, when you come to the real thing that is in 
this case, yon judge this man by his acts and conduct at that time and his acts and 
conduct as you have seen it here. Now, what did he say? You have heard the 
testimony of some seven or eight witnesses for the Government, and heard the testi- 
mony of the defendant and another witness. You have to weigh the evidence of these 
witnesses and determine what was said. 

Of course, I am not going to go through the claims made by the Government as to 
the particular things that they claim he said, but I will illustrate by one or two. Did 
he say. now, there that night that when a soldier went away he was a hero and that 
when he came back flirting -with a hand organ he Avas a bum, and that the asylums will 
be filled with them? Did he sa> that or not? You have got to say that. If I express 
an opinion of any facts here in this case, I don't want you to consider that opinion; 
I don't intend to; but in the discussion sometimes of the evidence it might appear 
to you that I was expressing an opinion . I am not trying to. Did he say it? Suppose, 
now, you say, "Yes; he said that"; then the real question is, "Why?" What was his 
purpose? Judge that from all of the facts and circumstances under which he was 
speaking. These facts and circumstances are not in dispute except in matters of 
detail. There is no dispute that at that time there was a l>attery here of United States 
soldiers, either actually enlisted or ready for enlistment; there is no dispute but what 
a Government officer of the United States was here with headquarters for enlistment; 
there is no question at all that the only way they can get men in the Army is by volun- 
teers and by conscriptioii: and in this connection you have a right to go right down 
into human nature and what you know about it. 

You have a right to consider in so far as you know from human experience what a 
hard thing it is for parents to sometimes give up their boy to the service of the Govern- 
ment in war, and how far, if at all, statements of that kind, if they were made, would 
reach down into the heart of the father or mother or boy and have a tendency to take 
the courage out of them; how, if at all, it would have that effect; or how far. if at all. 
it would have some other effect. You have a right to take those things into considera- 
tion. Take not one single statement here, but all the statements: take not onlv what 



36 SPEECH OF SENATOR EOBEKT M. LA FOLLETTE. 

the Government says that this man said, but take what he says he said himself, and 
determine what he meant; what was his pm-pose and intent. For instance, as I recall 
the testimony — l)ut you are to determine that question — he said this is a capitalist 
war. If so, what was his purpose? As I recall, he testified that he said soldiers were 
giving their lives for the capitalists, that 40 per cent of the ammunition of the allies 
or theii" guns was defective because of graft. If so, what was his purpose? What 
purpose does he explain himself? Give his explanation all the weight it is entitled to 
under all the circumstances. You are to determine the question \Ahether he was 
trying to restrain enlistment as charged, or words to that effect: or whether he was 
trjdng to restrain them from enlisting in the English Army. Take his explanation 
and determine what his purpose was, take the circimistances under which he said it, 
surrounding it, and all that he said. 

And so, I haA'e used these few statements simply to illusti'ate the processes of the 
mind In- wliich you must arrive at what the defendant did in this case. Now, if he 
said things, as claimed by the Government, which from their ^^'ery nature the result 
would have upon tlie human mind a tendency to cause insubordination, disloyalty, 
or mutiny, or refusal of duty, if that was the real natural consequence that would 
follow from a speech of that kind, and if he intended it to ha^'e that effect, he is guilty 
on this first count; and that is true, e^'en though it did not have that effect. The 
Government does not have to prove that somebody somewhere did violate some rule 
or regulation, because the statute is plain: '"Whoever, when the United States is at 
war, shall mllfuUy cause or attempt to cause insxdiordination. disloyalty, mutiny, 
or refusal of duty in the military or naval forces of the United States ' " shall he punished 
if he '■ attempts ■' it. 

So, now, gentlemen, take this matter uj) tu-st. We ha^■e forms for your verdict here, 
so as to enable j'ou to get the ideas of the court in theii- order. The hrst form of the 
verdict is: 'AVe. the jiu-y, hereby find the defendant. Daniel H. Wallace, guilty of 
having caused or attempting to cause insul)ordiiiation, disloyalty, mutiny, or refusal 
of duty in the military or naval forces of the United States, as charged in count 1 of the 
indictment herein." 

Now, if you find that he did those tilings in the manner indicated, under the law 
you huve got to say he is guilty: if you are not so satisfied beyond a reasonable doubt 
after weighing all of the evidence, then he is not guilty of that offense, and you will 
return the verdict of not guilty upon the first count, as follows: "We, the jury, hereby 
find the defendant, Daniel H. Wallace, not guilty of ha^ing caused or attempting to 
cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval 
forces of the United States, as charged in count 1 of the indictment herein.'' 

Now, then, as to the second count, the verdict is as follows: "We, the jury, hereby 
find the defendant, Daniel H. Wallace, guilty of having obstructed the recruiting or 
enlistment service of the United States, to the injury of the service or of the United 
States, as charged in count 2 of the indictment herein." 

Was he giulty or not of that? Wliat did he do to be guilty of this offense? The 
Government must prove that he did something and must prove beyond a reasonable 
doubt that he did something. The Government has said that he did and said so and 
so under certain conditions, a too long statement for me to undertake to repeat, but 
you remember them. It isn't of com'se now a question of whether he said all of the'se 
things just as the Government says he did, but it is the question of whether he said 
any of them, the natural consequence of which would be that it would obstruct the 
recruiting and enlistment service of the United States. The Government doesn't 
have to go out and find a particular individual that was restrained from entering the 
service of the United States because of this speech ; it is sufficient if it has proven 
that he uttered words there, the natural and probable consequence of which upon the 
public mind would obstruct recruiting or enlistment, with an intention that it should 
do so. The Government must prove that though by a preponderance of the evi- 
dence; othei-wise he can't be convicted upon the second count. 

So you see, after all, it gets down to a very narrow question, comparatively naiTow. 
Did he say these things, or any of them, with the pmpose charged by the Government 
in this indictment, as I have explained to you, or didn't he? And was the language 
that you find he used, was that language such as, under the circumstances under which 
it was used, taking all of his speech together, would natmally and probably do the 
things charged by the Government? What would be the natural consequence of what 
he did? Would it either, under the first count, cause or attempt to cause insubordi- 
nation, disloyalty, mutiny, or refusal of duty, or under the second count, obstruct 
the recruiting and enlistment service? 

Now. that is about all the heljD I can give you gentlemen. Of course, it is necessary 
in the administration of law, in the application of law to the complex affairs of human 
life, to proceed upon the theory that men ordinarily intend the natural consequence 



SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 37 

of their acts. That presumption is not conclusive, but it is the ordinary thing, that 
men, ordinary men, do intend to do the thing that their acts would indicate, and their 
purpose can usually be judged from their acts, but that has got to be taken into con- 
sideration under all their acts, surroundings, and conduct in order to try to arrive at 
the solution of this problem which compels a jury to go down into the hearts of men 
to find out what was there. 

In the United States District Court, District of New Jersey, in the 
case of United States v. Frederick Krafft, Krafft was indicted under 
the same statute on several counts. Under the statute, it will not 
be necessary to go into details, but there is quoted here from the 
opinion the language used and the holding of the court: 

An indictment is a charge against a person. The Government contends that the 
defendant violated this statute in causing or attempting to cause insubordination. 
That you will find in the first count. By "count" I mean a separate charge. A bill 
of indictment is based on one or more charges which charge that the defendant vio- 
lated the law in this particular or in the other particular, and the separate charges 
are what are called counts. The first count charges as I have stated to you. The 
second count charges, in suljstance, that the defendant violated this statute in causing 
or attempting to cause disloyalty in the military or naval forces f f the United States. 
The third count is that he caused or attempted to cause mutiny in the military or 
naval forces, to the injury of the Govermnent; and the fourth count is that he caused 
or attempted to cause refusal of duty in the military or naval forces of the United 
States, to the injury of the same. If he did that, gentlemen of the jury, he is guilty. 
If he did not do it, he is not guilty. It is for you to determine whether or not he did. 
In your deliberation there will l)e tw( questions which you will have to decide. The 
Government charges that he violated the statute in the ways in which it is charged 
in the indictment by the utterances of these words at the time and place which has 
been testified 1)efore you: 

'■I can not see how the Government can compel troops to go to France. If it was 
up to me, I would tell them to go to hell. It is a damned shame. I can not see why 
Socialists here have not the same rights as in Germany. They send their own Sena- 
tors down to Washington to ^^ote on r'onscription. and they will not let the people 
doit." 

The first question, gentlemen of the jury, which you will have to determine, is 
whether or not the defendant said these words. If he did not, that ends the case, 
and your verdict should be not guilty. If you should reach the conclusion that he 
did say those words, then a further question arises, and that is: What did the defend- 
ant intend by the use of those words? As a matter of law it would not be sufficient 
for him to say those words without intending willfully to cause insubordination, dis- 
loyalty, mutiny, or refusal of diity, or some of them, in order to constitute guilt. In 
order to hold the defendant guilty he must have said those Avords with the intention 
of accomplishing some one of those things. 

Now, that might be accomplished by speaking directly to soldiers who were in the 
military forces "of the United States. It might be accomplished by speaking to a 
crowd partly composed of those who were subject to draft and might be called there- 
after. It is for you, from all the facts which have been testified to, to determine, 
first, whether ornot the defendant used the words Avhich he is alleged and charged 
to have used. If you find that he did. then it is for you to determine with what 
intention he used those words, because if he did not use those words willfully and in- 
tentionally to cause or to attempt to cause insubordination, disloyalty, mutiny, or 
refusal of duty, as I have defined them to you, lie is not guilty: but if he did. then he 
is guilty. 

I have tried to make the law governing the case plain to you gentlemen. The 
court has no idea as to the facts. If he had. he would not tell you: that is your busi- 
ness. You will, therefore, retire and bring in your verdict. 

I have several requests here from the defendant. The first request I think I have 
covered; the second I have covered; the third, fourth, and fifth I have covered. In 
fact, I think I have covered all of them except the last one. Is that right, Mr. Linda- 
bury? 

Mr. LiNDABURY. Yes. 

The Court. Then, as I understand it, they are all withdrawn, except the last one, 
as having been substantially covered in my charge. 

Mr. LiNDABURY. Yes, your honor. 

The Court. Gentlemen, the last request is: "If the jury finds that the defendant 
made the statements alleged in the indictment and that the statements were made as 



38 SPEECH OF SENATOR ROBERT M. LA POLLETTE. 

the result of sudden anger and without deliberation, the defendant must be acquitted." 
I so charge you. As I understand this point it is directed to this phase of the law: 
That the defendant can not be convicted unless he did what he did with intention. 
When he said those words — if he said them — if he intended willfidly to cause one of . 
those things which the statute denounces, then he is guilty: if he did not. he is not 
guilty. . ' ■ 

It is important, gentlemen of the jury, that nothing should interfere with the military 
and naval forces of the United States when it is at war and in a death struggle. It is 
just as important, gentlemen of the jury, that at this time and all other times the 
liberty of indi\idual citizens who have not committed crime be protected. So, in 
your deliberation, you will consider the fact and the fact alone as to whether this 
defendant made these statements, and if he did. did he make them with intention will- 
fully to cause insubordination, disloyalty, mutiny, or refusal of duty? But. gentle* 
men, the impotance of noninterference, as I said a while ago, with the military and 
naval forces when the United States is at war should not influence you in the least 
to find a verdict that is not based absolutely upon the evidence by the ordinary rules 
of logic and common sense: in other words, it should not make you convict a man more 
quickly than you would do in other times or under other chcumstances. Yoiu' sole 
duty consists in finding just what the facts are. and the fact that we are at war only 
bears on thai as giving rise to this statute. So, shut out everything but the evidence, 
as I have charged you — every influence of every kind — and use your common sense 
and the ordinary rules of logic and weigh the testimony of all of these witnesses, both 
pro and con, as thej^ ha^e related what occurred that night at that place, and determine 
whether the defendant used these words, and if he did. what his intention was — 
whether he used them willfully with intent to cause insubordination, disloyalty, 
mutiny, or refusal of duty. 

Mr. LiNDABURY. Your honor said that it is important that the conduct of the war 
be not interfered mth in any way. I feel that that leaves the impression that any 
interference is a violation of this statute, and I would like to have an exception to that 
part of your honor's charge. 

The Court. Do you want me to change that or charge it over in any way? 

Mr. LixDABURY. The point being that any interference is not a violation of the law, 
it is only the things that are prohibited by the statute that the jury should consider as 
interference. 

The CouR'i. Gentlemen of the jury, Mr. Lindabury has called my attention to the 
fact that I stated that it was important that the naA'al and military forces of the United 
States should not be interfered with in the discharge of their duty, or words to that 
effect. We have in this case nothing to do with that at all unless it comes within the 
provisions of this statute — only that the defendant did or said something willfully and 
with intent to cause insubordination, dislovaltv, mutiny, and refusal of dutv. 

(September 27. 1917.) 



Opinion of United States District Court, Southern District of New York, 
Relating to Revocation of Second-Class Mailing Privilege Under Espi- 
onage Act (Act of June 15, 1917). 

United States District Court, Southern District of New York. Masses Publishing Co., 
complainant, i'. T. G. Patten, postmaster of the city of New York, defendant. 

Gilbert E. Roe, solicitor for complainant; Francis G. Caffey, solicitor for defendant; 
Earl B. Barnes, counsel. 

Augustus N. Hand, District Judge: This suit is brought to enjoin the postmaster 
of New York from treating the September issue of the Masses as a nonmailable publica- 
tion and to require him to transmit it through the mails. A motion is made for an 
order pendente lite for substantially the same relief as prayed for by final decree. 

The Postmaster General, after a hearing, revoked the privilege of the Masses to be 
transmitted as second-class mail matter in a communication addressed to the post- 
master of New York under date of August 15, 1917: 

"Because it appears from the evidence in possession of the department that the 
publication is not a 'newspaper or otlier periodical publication' within the meaning 
of the law governing mailable matter of the second class, and, furthermore, is not 
regularly issued at stated intervals as a newspaper or other periodical publication 
within the meaning of the law, it being in conflict with the provisions of the law 
embodied in section 481i, Postal Laws and Regulations." 

Section 481^ of the Postal Laws and Regulations in substance prohibits the use 
of the mails to publications which violate tlie espionage act of June 15, 1917. Both 



SPEECH OF SKNA'JH)R ROBERT M. J.A FOLI.ETTK. 39 

tlie aHidavit upon which the order to show cause was granted and tlie answering 
affidavit indicate that the September issue of the Masses has not been declared iii 
itself nonmailable and that the question whether it is mailable or not has not come 
up for decision. The revocation of the second-class privilege appears to have been 
due to the fact that recent issues of the magazine contained nonmailable matter in 
violation of the espionage act. No attempt has been made to secure the transmission 
of the magazine under any other classification than that of second-class mail matter, 
nor has the necessary postage been ])aid under any other classification. The replying 
affidavit sets forth that the department has excluded the September issue from the 
mails under every classification, but I can not see that this is established by any 
decision rendered by the postal authorities. 

It is unnecessary to decide whether the September issue standing by itself is a 
nonmailal)le publication. This would be determined largely by the result of the 
pending appeal from the order of Judge Learned Hand in the suit involving the 
August issue. In September the editor adopted a somewhat milder and less pro- 
nouned tone than in August, but continued to hold up violators of tlie conscription 
act to admiration and to say what he thought he safely c^ould to promote opposition 
to the war and to undermine the successful conduct of it. Whether enough appears 
to constitute incitement to violation of law within the meaning of the espionage act 
may be a matter for future decision. The determination of this question should not 
in my oi^inion depend upon the form of the apj^eal to the public but upon the natural 
and intended effect of what is said and done. A persistent propaganda by means of 
articles glorifying the deeds of notorious A'iolators of the conscription act may promote 
disloyalty in the military forces and cause obstruction to recruiting as truly and 
designedly as words of formally direct incitement to violation of law. We are dealing 
with realities and not mere forms of expression and our system of jurisprudence is 
neither so artificial nor impotent that the objects of the espionage act can V)e defeated 
by indirect methods. It is always to be remembered that the Masses is not attacking 
a mere party program or Executive policy but is seeking to undermine those means 
which the Nation has adopted to protect the people of tlae United States as Avell as 
civilization itself from the assaults of a jjowerful foe after a declaration of war has 
been made by an overwhelming majority of i)oth Houses of ( ongress. United effort 
in this war is plainly of the highest consec[uence, and the promotion of the united 
effort and inhiliition of disintegrating forces were prime reasons for the passage of the 
espionage act. Whether the August and September issues present such a body or 
kind of material as to furnish the equivalent of direct incitement to violation of the 
law need not be decided now, but the ultimate construction of the espionage act as 
applied to pulilications such as the August and September issues will depend largely' 
upon the importance which the appellate court attaches to the value of restrianed 
freedom of speech under all circumstances. 

The Government insists that it has done nothing further than to revoke the second- 
class mail privilege in a lawful manner after affording the hearing proAided for by the 
act of Congress. In making this decision the department took into consideration the 
contents of the June, July, and August issues of the magazine. 

In the June issue Max Eastman said: 

"We wish to persuade those who l"ve liberty and <lemocracy enough t( give their 
energy or their lives for it to withhold the gift from this war and save it to use in the 
sad renewal of the real struggle for liberty that will come after it. We want them to resist 
the war fever and the patriotic deliriunr, the sentimental vanity, the sentimental 
hatred, the solemn hypocrisies of idealists, resist the ceremonious installations of petty 
tyrants in every department of our lives, resist conscription if the}* have the courage, 
and at whatever cost tc their social complaisance save themselves for a struggle of 
human liljerty against oppression that mil ])e what it says it is." 

The same author says at page 24 t>f the June issue; 

■'We brand the declaration of war by our Government as a crime against the people 
of the United States and against the nations of the world.'" 

In the July issue Bertrand Russel writes at page 5: 

■'The young men of America will he performing the greatest possible service to those 
less fortunate contemporaries in Europe l)y maintaining throughout the remainder 
of the war the right of the individual to judge for himself whether he will engage in 
destruction at the bidding of men less wise and humane than hinisell or whether he 
will preserve inviolate the claim that a man's own estimate of right and wrong should 
be the ultimate arbiter of his conduct." 

The foregoing excerpts plainly are direct appeals to resist conscripticn. The August 
issue of the Masses was filled with glorification of those who refused to enlist and 
violated the law. and the Septeml^er issue contained similar matter in diluted form. 
Judge Learned Hand ordered the transmissicm i)f the August numlier through the 



40 SPEECH OF SEISTATOE ROBERT M. LA FOLLETTE. 

mails because he thought it had not gone far enough to be treated as in effect inciting 
resistance to conscription, while Judge Hough in the circuit court of appeals regarded 
this decision as so doubtful that he granted a stay of the order pending appeal. Such 
was the record of the Masses prior to the September issue, when the department 
revoked its second-class mailing privilege. 

A publication to be entitled to seconcl-class mail privilege must be regularly pub- 
lished at stated intervals. The Postmaster General in a report to the Senate says: 

"In order for any publication to have the second-class privilege it must, among 
other things, he issued regularly at stated intervals, and in order to be permitted 
to the mails luider any classification it must ])e mailable under the law. 

"AH of the publications, including the Masses, which have had the second-class 
privilege withdrawn on account of violations of the espionage act have lost that 
classification primarily for the reason that they M^ere publishing matter which made 
their issues nonmailable under any classification, and hence are not newspapers or 
other periodical publications within the meaning of the law governing eecond-class 
mail matter. 

"For many years this department has held publications not to be 'regularly issued' 
in contemplation of law when any issue has contained nonmailable matter; and when 
the second-class privdlege has been withdrawn, under such circumstances, the formal 
notice of withdrawal, has contained the statement that the second-class privilege has 
been revoked on both of the grounds stated . 

" As a matter of fact, in case of the Masses and other publications covered by the 
Hardwick resolution, following the usual practice of the department, not only have 
the particular issues which have been declared to be nonmailal)le but various other 
issues of the publication have been taken into consideration in determining their 
right to the second-class pri\"ilege, so that the final action was necessarily based prin- 
cipally on other and A'ery much broader grounds than the break in the continuity 
of the publication. 

The hearing which the law requires to be given befoi'e a second-class privilege can 
be revoked would indicate that the past conduct of the magazine may be taken into 
account. Clearly the Masses in several of its recent issues violated the espionage 
act and upon this ground might jaroperly be deprived of its privilege. The position 
of the Postmaster General that the privilege might be revoked because a magazine 
which published unlawful matter in some of its issues was not regularly issued within 
the meaning of the statute seems not unreasonable. That which must be regularly 
issued is a lawful magazine. If the publication contains matter in violation of law, 
it ceases to be a mailable publication at all, and hence can lay no claim to regularity 
of issue. It was for this reason that the Masses was held by the department not to 
be regularly issued and not for the absurd reason suggested at the argument that 
transmission had been interrupted by the stay of Judge Hough. A more important 
ground of revocation than irregularity of publication was the illegality of matter con- 
tained in recent issues. 

The second-class privilege was properly revoked, and as no attempt has been made 
to secure transmission under anv other classification, the motion is denied. 

(September 12, 1917.) 

Ruling of United States District Court, Southern District of California, 
Southern Division, on Disposition of Moving-Picture Film Seized Under 
Search Warrant Under Title XI of Espionage Act. (Act of June 15, 1917.) 

In the District Court of the United States for the Southern District of California, 
Southern Division, United States of America, plaintiff, v. Motion-Picture Film 
"The Spirit of '76,'' defendant. 

Bledsoe, District Judge: The facts developed in this proceeding show that this 
photoplay, "The Spiiit of '76," attempts to portray some of the more important 
phases of the American War for Independence, and special scenes, like Paul Revere's 
ride, the signing of the Declaration of Independence, and the like, are given par- 
ticular mention and prominence. In addition — and these are the parts of the film 
inveighed against — scenes purporting to illustrate the Wyoming Valley massacre are 
shown. \ British soldier is pictured impaling on a bayonet a baby lying in its cradle 
and then whirling it around his head so impaled. Other unspeakable atrocities 
committed by British soldiers, including the shooting of harmless women, the drag- 
ging off, sometimes by the hair of the head, of young American girls, etc. , are exhibited. 

Because of adverse criticism and objection, before scheduled initial performance a 
private exhibition of the picture was had, attended by divers local and governmental 
representatives. At this performance none of the objectionable features above 



SPEECH OF SENATOR ROBERT M. LA FOLLETTB. 41 

mentioned were shown, and in consequence no open objection to the proposed run of 
the play was voiced. Immediately following this preliminary presentation, though, 
the director, Goldstein, inserted into the film in appropriate places the scenes of 
the Wyoming massacre just referred to and proceeded to show them at the ensuing 
evening performance. This he did, he says, "to excite the audience" and attract 
greater attention to his production. 

The film is owned by a corporation, but seems to be and to have been managed by 
Goldstein, the man who wrote the scenario and who has "produced " the picture. As 
is usual in such cases, a good many thousands of dollars, probably in excess of a Imn- 
dred thousand dollars, liave been expended in the work of such production. 

I have listened very carefully to the statement of Mr. Scott, counsel for the stock- 
holders in the film company, and I sympathize with them for having made an invest- 
ment in this film, with no knowledge of its true character. The various stockholders, 
of course, I do not know, and, in consequence, can not know their attitude toward the 
presentation of this film. I have given careful consideration to the suggestion made 
by counsel with respect to the possibility and even probability of financial losses 
inuring to the stockholders, and perhaps of some considerable consequence. Bearing 
all this in mind, however, and assuming that you and your associates are going to 
suffer some considerable loss, this court at this time is in no mood to weigh the finan- 
cial losses of a few individuals as against possible detriment to the United States of 
America. If it be that some will have to suffer loss, yet it is only a financial loss, 
and, at worst, will be only a fractional part of the loss that others are going to have to 
suffer — some even of their lives — because of the war in which are now engaged. 

History is history, and fact is fact. There is no doubt about that. At the present 
time, however, the United States is confronted with what I conceive to be the greatest 
emergency we have ever been confronted with at any time in our history. There 
is now required of us the greatest amount of devotion to a common cause, the greatest 
amount of cooperation, the greatest amount of efficiency, and the gi-eatest amount of 
disposition to further the ultimate success of American arms that can be conceiA^ed, 
and as a neces.sary consequence no man should be permitted, by deliberate act, or 
even unthinkingly, to do that which will in any way detract from the efforts which 
the United States is putting forth or serve to postpone for a single moment the early 
coming of the day when the success of our arms shall be a fart and the righteousne.ss 
of our cause shall have been demonstrated. 

We are engaged in a war in which Great Britain is an ally of the United States. It 
is a fact that we were at war with Great Britain during the Revolutionary times, 
and whatever occurred there is written upon the page of history and will have to 
stand, whomsoever may be injured or hurt by the recital or recollection of it. But 
this is no time, in my judgment (this is the thought that controls me in this matter), 
whatever may be the excuse, whether it be a financial return or otherwise, for the 
exploitation of those things that may have the tendency or effect of sowing dissension 
among our people and of creating animosity or want of confidence between us and our 
allies, because so to do weakens our efforts, weakens the chance of our success, impairs 
our solidarity, and renders less useful the lives we are giving to the end that this 
war may soon be over and peace may soon become a thing substantial an<l permanent 
with us. I am in no mood, either, particularly after having listened to the testimony 
of this man Goldstein, to consider the suggestion that the film be returned and so much 
of it be permitted to be exhibited as has not met with special objection. 

It is a fair inference from the circumstances, considering the hearing had in Chicago, 
the objections then made, the language used in characterizing its scenes of atrocity as 
being "reprehensible" and as evidencing "malice," that the disposition and purpose 
of the whole play in its deeper significance is to incite hatred of England and Eng- 
land's soldiers. And it is not at all necessary that it should be shown to have such 
effect: it is enough if it is calculated reasonably so to excite or inflame the passions of 
our people or some of them as that they \vill be deterred from giving that full measure 
of cooperation, sympathy, assistance, and sacrifice which is due to Great Britain simply 
because of the fact that Great Britain, as an ally of ours, is working with us to fight the 
battle which we think strikes at our very existence as a Nation. 

Ordinarily the exploitation of such harmless, in one sense, highly inspiring, in 
another sense, scenes as Paul Revere 's Ride, which is one of the most beautiful things 
in history, could not be detrimental or distasteful to anybody. Ordinarily it could 
be put on in such a way as to be a source of unending delight and gratification to any 
man, be he American or be he English — but that is not the point. There are inter- 
spersed in this play those things which tend to appeal to the passions of our nature, 
which tend to arouse our revenge and to question the good faith of our ally Great 
Britain and to make us a little bit slack in our loyalty to Great Britain in this great 
catastrophe or emergency. Therefore, as I say, this is no time or plat^e for the ex- 



42 SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 

ploitation of that which, at another time or place, or under different cii'cumstances, 
might be harmless and innocuous in its every aspect. It is like the "right of free 
speech, " upon which such great stress is now being laid. That which in ordinary 
times might be clearly permissible, or even commendable, in this hour of national 
emergency, effort, and peril, maj^ be as clearly treasonable and therefore properly sub- 
ject to review and I'epression. The constitutional guaranty of "free speech" carries 
with it no right to subvert the purposes and destiny of the Nation. 

In addition, this man, by his own admission, knew that these things — the bayoneting 
of the babe and the like — had been severely criticized and were inhibited. He knew 
that objection had been made to them. He knew just as well as he knows we are 
sitting here now that the private presentation of this film on last Tuesday morning 
was for the purpose of seeing if there was anything objectionable in it. To fit it for 
such private presentation it was gone over by him with a fine-tooth comb, no doubt: 
but immediately thereafter a sedulous effort was indulged in by him to insert those 
things which would tend to ' ' excite" and to create a prejudice against Great Britain. 
This demands an inquiry into the ultimate motives and purposes of this man, and 
no doubt justifies other and different action against him. But in any event, referring 
to the special problem now before us and considering only the harm now to come to 
us, I feel that I can do no less than to say that so far as it is within the power of this 
court, this thing has got to stop. 

I haA'e no disposition, of course, to confiscate anyone's property. There may come 
a time and place where this play, devoid of some of its horror, which never ought to 
be in it at any time, and devoid of its immorality, which is and ought to 1)e shocking 
to any man who possesses a respectable quantum of decency in his make-up — devoid 
of those things, the time may come when it could be put on, and put on entertainingly 
and refreshingly before an audience of American people. The fact is, however, that 
the film is of such a character that it can be used to oiu' national disad^'antage in time 
of national emergency, and this can not be allowed. If the result be to bring a loss 
upon those who are financially interested, so be it. It is merely a loss they must 
sustain because of the unwisdom they have demonstrated in trusting their financial 
affairs to one who possesses such a slight modicum of appreciation of the eternal 
fitness of things as does this man who is presenting and claiming the right to present 
this picture at this time. 

The motion for the return of the film will be denied without prejudice. It will be 
held in the possession of the marshal until such time as, under changed conditions, 
it may properly he presented, and the district attorney is directed to prepare for the 
court a warrant for the seizure of the original, which is within the jurisdiction of this 
court, as shown by the testimony given here, and that will be put in the same place 
and kept under the same surveillance. 

(November 30, 1917.) 



Charge to the Jury op United States District Court, District of North 
Dakota, Relatixg to Section :i Title 1, of Espionage Act (Act of June 15, 
1917). 

United States v. Kate Ri( hards O'Hare. In the District Court for the District of 

North Dakota. 

charge to the jury. 

Waue, District Judge: Kate Richards O'Hare did willfully, unlawfully, and felo- 
niously, at a public meeting held in a hall in the city of Bowman, in said county of 
Bowman and State of North Dakota, in a public speech made by her in the presence 
of 125 people, state in_ substance that any person who enlisted in the Army of the 
United States of America for servif e in France would be used for fertilizer, and that 
is all that he was good for, and that the women of the United States were nothing 
more nor less than brood sows to raise children to get into the Army and be made 
into fertilizer. That su<'h statement so made was made with the intention of will- 
fully obstructing the enlistment service of the United States, to the injury of the 
service of the United States. And another count in the .same language is charged, 
it being stated that her intention was to interfere with the recruiting service of the 
Unitecl States. So, you see, the charge is here that this lady macle a speech in which 
she said certain things with a certain intent and purpose. Now, all wo have to 
deterrnine, all you gentlemen have to determine, is whether that is true or not . 
That is all. And in this connection something has been said, properly said, with 
reference to the right of free speech in this country. I hope there may be no mis- 



SPEECH OF SENATOR ROBEET M. LA FOLLETTE. 43 

understanding upon that point by anyone. The Con-stitution of the United States 
and the constitution of North Dakota both guarantee rights of free speech. But 
under tJhese constitutions it has always been held that every person will be held 
liable for the abuse of that right. This case does not involve any restraint upon the 
physical act of speaking and saying things. It is simply bringing a })erson to the 
court and charging that in the exercise of the constitutional right of free speech she 
abused that right by violating a law passed by the Congress of the United States. 
The right of free speech never protected anybody in abusing that right by violating 
a law, as you can readily recall, because under your own obsei'vation you probabh* 
have seen men arrested for causing damages to a neighbor by libel or sued for damages 
for making an oral statement. 

So, now we are only considering whether or not this woman did violate a law of 
the United States in exercising her right to free speech. Now, what law? J3ear in 
mind now it does not make any difference in a criminal case whether a man on trial 
knew about the law or not. Not a particle. Our whole process of government in 
this country, or in any country, must proceed upon the theory that every man under- 
stands the law, because if a man should steal your horse or break into your home or 
kill your family and could defend himself upon the theory that he did not know it 
was a violation of the law, it would result in a strange perversion of justice. This 
woman is not charged with an intent to violate the law. She is charged with doing- 
things with an intent to have a certain effect, which the law says shall be punished. 
The intent relates to a purj)ose that she has in saying things and is utterly obli-\'ious 
as to whether she had in her mind a law she was trying to A'iolate or not. 

Now, in order to understand this law, and appreciate its obligation, you have a 
right to take into consideration the things of general knowledge that the world knows, 
that you know — that this Nation has been drawn into this awful world conflict, 
and that we are at war since April 6, 1917. You have a right to take into consideration 
the gerenal purpose and feeling on the part of the great majority of the American 
people that this war must he won; that no other result would he tolerated. You 
have a right to take into consideration the general knowledge which you must have, 
as everyone else, that there is only one way to win the war, and that is to have men, 
soldiers, and the only way to get men for soldiers is either by voluntary enlistment, 
or by conscription, one of the two. The evidence shows, and your own knowledge 
lirings to you the fact that at and prior to the time tliis speech was made, the Govern- 
ment was then exercising its power, and its duty, in view of the fact that we are in 
this war, to get men to serve as soldiers, and that they were then recruiting, as the 
expression is, asking men to enlist voluntarily, as well as at that time preparing 
methods of conscription. It appears from the evidence that this effort at getting 
enlistment Avas being made at Bowman, in this county and State, where this lady 
spoke. Now, of course, the Government having tliis ol)ligation and this duty, and 
responsibilitj'', had the right to protect itself against those who would interfere with 
the performance of that function — not against the many, l)ut against the few who 
might assume that they knew more than the other ninety millions of people, and who 
might assume to obstruct so far as they might tliis duty on the part of the Government. 
I say that the Government had the right to pass a law to keep persons from interfering 
with the performance of this duty. Of course, the Government in this country speaks 
only through Congress; and Congress, representing all the people of the United Sgates, 
on June 15, 1917, passed a law which has been referred to as the espionage law, having 
a great many restrictions upon acts and conduct which are never exercised in times 
of peace, but which to Congress seemed advisable in a time of war. And one of these 
restrictions is that ' ■\\lioever, when the United States is at war, shall willfully cause, 
or attempt to C'S,use, insubordination, disloyalty, mutiny, or refusal of duty, in the 
military or naval forces of the United States, or shall willfully obstruct the recruiting 
or enlistment service of the United States, to the injury of the service of the United 
States, shall he punished. " 

Now, it is the latter of those two clauses which the indictment charges here that 
the defendant violated: •'^^Tloever shall -willfully obstruct the recruiting or enlist- 
ment service of the United States '>^ * * shall be punished." That is the law 
of this country. It was the law July 17; it has l>een the law since June 15. Now, 
that being the law, the grand jury retiu'ned this indictment to which 1 have referred 
charging her vdth violating that law. Now, you mil ol^serve that in the language 
of the statute it does not say anything al)out the manner in wliich the person shall 
obstruct, but it says, ''Whoever shall willfully cause, or attempt to cause insubordi- 
nation, * * -5* or shill wdllfuUy obstruct the recruiting or enlistment service of 
the United States" — obstruct by word, or act, or printing, or any other way. It 
does not say how the act shall be done, but any way that a person olistrncts willfully 
the recruiting- or enlistment service. That is the thing tlie grand jury cliarged against 
her, and specified the things which they say she did. 



44 SPEECH OF SENATOR ROBERT M. LA POLLETTE. 

Charge to the Jury op United States District Court, District op Colorado, 
Relating to Section 3, Title I, of the Espionage Act (Act of June 15, 1917). 

In the District Court of the United States for the District of Colorado. United States 

V. Orlando Hitt. 

instructions ro tite jury. 

Lewis, Distri-.t Judge Crentlemen o." the jury, the Unitec" States of Vmerica, acting? 
through Congress, as the Constitution provides, in April of last year declared that a 
state of war existed between the United States and the Imperial German Government. 
and that condition has continued unbroken since. Immediately after that declaration 
of war it became necessary, of course, for the United States to prepare itself to carry 
on the war. It anticipated and intended a conflict of arms on land and probably 
naval engagements at sea. The Congress therefore immediately set about providing 
means to support the organized Army as it then existed and to raise and STipport other 
additional land and naval forces. It was not only necessary to support, equip, and 
transport those forces, but it was also necessary to protect the organization of the 
military and naval forces, and also to guard against interference with further enlist- 
ments. It passed a number of acts in furtherance of those purposes. It passed the 
act. which is doubtless familiar to you, requiring citizens between certain ages to 
register for the purpose of later calling them into the militaiy and naval forces of the 
United State?, and for the purpose of protecting, as already said, those organisations 
after they had been formed into the forces of the United States, as well as preventing 
interference with, the enlistment of those forces, it passed the particular statute with 
which we are now concerned and which the defendant is variously charged in these 
10 counts of the indictment with having violated. 

Now. we are called here, court and jury, to determine whether or not the defendant 
is guilty as charged; that is. whether or not he is guilty of violating the particular 
statute which he is charged to have \dolated. We are not here for any other purpose. 
And the luily kind of a verdict that you can possibly render in this case is a verdict 
determining simply, and only, whether cr not the defendant violated this statute as 
charged in any of these counts in this indictment. We are not here sitting as a censor- 
ship board to say that we don't like to have people make a certain kind of talk. We 
are here to determine whether or not the talk that the defendant in this case was 
charged with having made was in virlation of this statute, and it is wholly immaterial 
and irrelcA'ant as to whether we personally approve or disapprove what he said. 

Now, what is that statute? It is a simple statute, and I am confident that you will 
have no trouble whatever in understanding what it means. It defines the crime with 
which the defendant is charged. There are two crimes defined in this sam.e section of 
the statute, which he is charged in this indictment to have committed, and the indict- 
ment charges that he committed each of them five different times. Now, cne of those 
crimes is defined in this language: "Whoever, when the United States is at war, shall 
willfully * * * attempt to cause insubordination, disloyalty, mutiny, or refusal 
of duty in the military or naval forces of the United States,'" shall be guilty of a crimi- 
nal offense. And this indictment, in all of the odd-numbered counts, to ^vit, counts 
1, 3. 5, 7. and 9. charges that the defendant, on different occasions, violated this 
section of the statute and committed the crime thus defined by the use of the particular 
language, or the substance of that language, set out in each one of those counts. Those 
words are simple in meaning. Possibly the word "mutiny" has something oi a tech- 
nical meaning. I read it again: "Whoever, when the United States is at war. shall 
willfully * * * attempt to cause insubordination, disloyalty, mutiny, or refusal 
of duty in the militarv^ or naval fi rces of the United States," shall be guilty of a crimi- 
nal offense. I read you the definition of the "word "mutiny." It means unlawful 
resistance of a superior officer or the raising of commotions or disturbances on board of 
a ship, against the authority of its commander, or in the Army in opposition to the 
authority of the officers. The word "insubordination"' merely means disobedience 
to lawful authority. "" Disloyalty " means faithlessness in allegiance. It also is 
synonymous with disobedience. "Refusal of duty " is as .simple as definition can 
make it. 

Now, the apparent pm'pose of that statute is open to all of you. It made it a criminal 
offense, punishable by fine of not more than $10,000 or imprisonment of not more 
than 20 years, for anyone to attempt to incite the crew of any American vessel to 
resist the officers in command; to be disobedient to authority in the Navy; and like- 
wise to attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in 
the Army in the land forces. It is apparent that if anyone went out to Fort Russell 
in Wyoming, or Fort Logan in Colorado, and by harangue to a part of the military 



SPEECH OF SENATOE BOBERT M. LA POLLETTE. 45 

forces of the United States urged them to be disloyal to the commanding officers he 
would be guilty of a criminal offense. Or if he got one of these soldiers in town and 
attempted the same thing, to cause him to be disloyal or mutinous or insul^ordinate, 
or to refuse to fight with the military forces, or to comply with the military authorities 
in his duty as a soldier, he would be guilty under that statute. Or if he sent him a 
letter, or if he advised young men who were about to go into those services and become 
part of the military and naval forces, to resist the lawful commands of officers and 
be disobedient and disloyal, and refuse to perform his duty as a soldier, it would violate 
this statute. 

The only inquiry here, on each one of these odd-numbered counts, is whether or 
not this defendant, in the manner charged in each one of those counts, willfully at- 
tempted to cause insubordination, disloyalty, mutiny, or refusal of duty in the military 
or naval forces of the United States. That is all we are concerned with. There has 
been some suggestions made to you in argument upon both sides as to the advisability 
or nonadvisability of finding the defendant guilty or not guilty on the assumption 
as to what he might do if he was or was not found guilty. That is wholly foreign. 
You will dismiss any such consideration fi'om your minds. You are not concerned 
with what he intends to do if he is convicted, or with what he intends to do if he is 
acquitted. We determine this one case, and nothing else. Now, I come down to 
these counts. 

The first count charges that the defendant, in July last, at Mead, Weld County, 
Colo., "did feloniously and willfully attempt to cause disloyalty, insubordination, 
mxitiny, and refusal of duty in the military and naval forces of the United States, 
to the injury of the United States, in that he, <e.aid Orlando Hitt, did then and there, 
* * * in the presence of Thomas G. Egan," state in substance the following: 

"If the young men would follow my advice, which I am willing to give them, 
and stand on their constitutional rights, they could not be forced to go abroad to 
fight for this country. I would advise the young men to resist the draft for foreign 
service.'^' 

Now, the whole question on that count is, first, did the defendant use that language, 
or the substance of that language; secondly, if you find that he did use it, did he by 
using that languag;e willfully attempt to cause disloyalty, insubordination, mutiny, 
or refusal of duty m the military or naval forces of the United States? If you can say 
to yourselves, under your oaths, beyond a reasonable doubt, that the defendant, in 
the use of that language, if he did use it, willfully attempted to cause insubordination, 
disloyalty, mutiny, or refusal of duty in the military or naval forces of the United 
States, then you must find him guilty on that count. Otherwise you will acquit him 
on that count. That is all there is in the issue on that count. 

Now, the third count is identical in the offense charged, except it charges that the 
defendant committed that offense on August I, by the use of different language, and 
that language, or its substance, was that he said in the presence of Carl Rankin, Robert 
Hutchinson, T. W. Tyson, C. M. Paul, Ed Chalk, and others: 

"You are fools to appear for the draft. If I were you I would not appear and would 
not go. The Government has no right to draft you and send you out of the United 
States. If you volunteer they can send you, but the Constitution can not make you 
go under the draft. Any man who is a loyal American citizen -will not buy a Liberty 
bond. It is illegal for the United States to issue them." 

I do not stop, gentlemen of the jury, to consider the testimony which was adduced 
on the part of the prosecution, and also on the part of the defendant, as to whether or 
not the language thus stated, or its substance was used. I leave that to you. The only 
question on that count is whether or not the defendant used that language, or its sub- 
stance, on the occasion and at the time stated, and that in doing so he mllfully at- 
tempted to cause insubordination, disloyalty, mutiny, or refusal of duty in the military 
or naval forces of the United States. 

Now, the fifth count is a similar charge, the same offense, but that it was committed 
by the use of other language; that is, that the defendant, on August 20, in the presence 
of H. H. Ballinger and others, said in substance: 

"If I were you I would not go down to be examined for service. They can not do 
anything if you would not go. The draft is unconstitutional." 

The seventh count charges the same offense on a different occasion, in the presence 
of different parties, by the use of different language; that is, that on November 2, in 
Weld County, the defendant, in the presence of John Darcy, L. P. Mudd, Ed Johnson, 
S. C. Rankin, and other persons, stated in substance: 

"Our country is ruled by the British crown. President Wilson is a Britisher. 
Hoover is nothing but a Britisher. I would rather see my <"hildren led out and be 
shot than to see them burdened with a bond issue." 



46 SPEECH OF SENATOR EOBEET M. LA EOLLETTE. 

So, again, if you find and believe from the evidence, beyond a reasonable doubt, that 
the defendant on that occasion, as charged, and in the manner as charged, used the 
language, or its substance, as charged, and that in using it he willfully attempted to 
cause insubordination, disloyalty, mutiny, or refusal of duty in the land or naval 
forces of the United States, you will find him guilty on that count. Otherwdse you will 
acquit him. 

In the ninth count the same kind of a charge is made, the same offense was com- 
mitted, but on a different occasion, to mt, November 9, in the presence of George 
Burbridge, H. E. Brennan, Albert F. Peters, and others, by the use of this language, 
or its substance: 

"I am going to fight you fellows in your war work to a finish. There is no necessity 
for a Liberty loan if this was the right kind of a government. If you think my talk 
is seditious or my expressions are treasonable, I want to be punished, I want to be 
put in jaU for it. If I am not I am going to do something desperate. I opposed the 
draft and registration and I do now. I want to be put on record as such. I will con- 
tinue to use my influence against this draft. ' ' 

I don't stop in this instance, as in the others, to discuss the evidence introduced 
upon the part of the prosecution or upon the part of the defendant, or as to its con- 
flicts in some respects, but again instruct you that if you find from the evidence, 
beyond a reasonable doubt, that on the occasion charged the defendant, in the presence 
of the persons as charged, used the substance of the language as charged, and that 
in using it he willfully attempted to cause insubordination, disloyalty, mutiny, or 
refusal of duty in the military or naval forces of the United States, you should find 
him guilty on that count. Otherwise you will acquit him on that count. 

Now, the even-numbered counts in this indictment all charge the defendant with 
the commission of a criminal offense as defined in this same section of the statute, 
and those offenses with which he is charged are thus defined in this statute: "Who- 
ever * * * shall willfully obstruct the recruiting or enlistment service of the 
United States to the injury of the service or of the United States," shall be guilty of 
a criminal offense. Now, I call your attention to the fact that the definition of the 
preceding crime in this statute says that, "whoever * * * cause or attempt 
to cause [the defendant in this indictment is charged in each instance with attempting 
to cause] insubordination, disloyalty, mutiny, or refusal to duty," whereas, in the 
crime as defined in the latter part of the section which I have just read, Congress did 
not see fit to make it a criminal offense, by this statute, to attempt to obstruct the 
recruiting or enlistment ser^dce of the United States. I don't know why. It might 
be that in our judgment they ought to have made an attempt to obstruct a criminal 
offense, but they did not. So, so far as we are concerned, it isn't a criminal offense 
to attfmpt to obstruct. Congress made it a criminal offense not only to cause insub- 
ordination, disloyalty, mutiny, or refusal of duty, but it said, to cause or attempt 
to cause. That is, the military and naval forces that are organized. If you cause it 
or attempt to cause it, as to those forces, you are guilty of a criminal offense, and you 
may be sent to the penitentiary for 20 years. When it comes to the recruiting and en- 
listment ser\dce of the United' States, Congress did not see fit to declare that it is a 
criminal offense to attempt to o))struct that service, and that enlistment and re- 
cruiting, but it says, "whoever * * * shall willfully obstruct the recruiting or 
enlistment service of the United States to the injury of the ser^'ice or of the United 
States" shall be guilty of a criminal offense. 

Now, we can not ignore the fact that to attempt to obstruct is not made a criminal 
offense. It is sharply distinguished when put side by side with the preceding crime 
as defined in the same section, which states that to cause or attempt to cause insub- 
ordination was criminal; whereas, as to recruiting and enlistment service it was 
criminal to willfully obstruct, the element of attempting to obstruct being left out. 
There are many ways that would occur in v;hich the enlistment and recruiting service 
would be obstructed. It does not have to be stopped. The statute does not mean 
that; that the obstruction must extend to the point of actually stopping the whole 
service. It might be obstructed by taking the registration list and destroying it; 
by obliterating some names on that list, and by persuading some young men who 
are on that list and subject to call, to flee the country or to resist being put into the 
service. It might extend only to one man, but that would be obstruction. So 
that obstruction in its broad sense means to hinder, to impede, to embarrass, to retard, 
to check, to slacken, to prevent, in whole or in part. As used in the indictment 
it means active antagonism to the enforcement of the act of Congress; that is, to 
effectively resist or oppose the command of the law, to the injury of the service or 
of the United States, or by acts or words to intentionally cause others to do so; to 
interfere or intermeddle in such a way and to such an extent, as to render more 
burdensome or difficult the enforcement and the execution of the law, to the injury 



" SPEliC^hE OF SENATOR KOBER'i; M. LA FOLLETTE. 47 

of the service or of the United States. J3ul in e\'ery instance, l^efore you can find 
the defendant guilty on any of the counts which charge him with willfully obstructing 
the recruiting or enlistment service of the United States, to the injury of the service, 
you must be able to say to yourselves,, under your oaths, that you are satisfied, be- 
yond a reasonable doubt, that he did obstruct it. Now, as already said, one may 
violate this act by inducing one registrant to run away or to refuse to appear when 
notified, or to comply with the other requii-ements of the act necessary to put him 
into the service. And yet one might labor that way diligently with the registrant 
in an attempt to persuade him to refrain from going into the service, and still have 
no effect whatever on him. 

Now, I do not say, gentlemen of the jury, that Congress could not have made this 
statute broader; that is, that it could not, in the protection of the military or naval 
forces as organized, and in the furtherance of enlistment and recruiting, ha\e made 
other acts of interference, or an attempt to interfere, a criminal offense. We are not 
concerned with that. Congress has fixed the law. We are not making the law here 
for this case, and then attempting to enforce the law we make. We have no power to 
legislate. We only interpret and apply the statute made by Congress to the particular 
case in hand, and when we have done that the court and jury have done their full 
duty, and have neither the right nor the power to do more. So coming back to this 
statute, however reprehensible in our opinion it may be to criticize the war and the 
methods of carrying it on, that criticism is not a violation of this statute unless, 'upon 
the one hand, it is made in an attempt to cause insubordination, disloyalty, mutiny, 
or refusal of duty in the military or naval forces of the United States, as charged in 
counts 1, 3, 5, 7, and 9; or unless, upon the other hand, that criticism is made in an 
effort to willfully obstruct the recruiting or enlistment service of the United States 
to the injurv of the service or of the United States, as charged in counts 2, 4, 6, 8, 
and 10. 

All of these even-numbered counts charge the defendant with violating that part 
of the statute which defines and makes it a crime to willfully obstruct the recruiting 
and enlistment service of the United States to the injury of that service or of ihe 
United States. The elements of the definition are plain and simple. Willfully means 
intentionally; that is, that the act or the particular thing charged was done inten- 
tionally, and not accidentally. In count 2 the charge is that the defendant unlaw- 
fully and willfully obstructed, or "did feloniously and willfully obstruct the recruiting 
and enlistment service of the United States to the injury of the United States and to 
the service," in that on July 1, in the presence of Thomas G. Egan, he uttered in 
substance the following language, and then it sets forth the same language used in the 
presence of Egan in the first count, wherein it is charged that he attempted to cause 
insubordination in the military and naval forces by the use of that language. 

The fourth count charges that the defendant "did feloniously and willfully ob- 
struct the recruiting and enlistment service of the United States to the injury of the 
said service and to the injury of the United States," on August 1, by the utterance of 
the language set out, or its substance, in count 3, and that that language was used in 
the presence of Carl Rankin, Robert Hutchinson, T. W. Tyson, C. M. Paul, Ed Chalk, 
and others. So you see, gentlemen, the manner in which the counts are framed. The 
first cou,nt charges the uttering of certain language on a certain occasion in the presence 
of a certain individual or individuals, and that in the utterance of the language the 
defendant willfully attempted to cause insubordination, disloyalty, mutiny, or re- 
fusal of duty in the military or naval forces of the United States. Then that is imme- 
diately followed in count 2 by setting out the same language, on the same occasion, 
in the presence of the same persons, and that that language was used as charged in 
that count — to obstruct the enlistment and recruiting service of the United States. 

Count 3, which I read to you, charges him with an attempt to cause insubordina- 
tion, and count 4 follows it up with the same language, on the same occasion, and 
uttered in the presence of the same parties, as in count 3; and that in uttering that 
language the defendant willfully obstructed the recruiting and enlistment service 
of the United States, to the injury of the United States. 

I think it will be necessary for you to have the indictment so as to he able to intelli- 
gently act on each count; and with what I have said and the indictment before you 
you will readily understand it and the basis on which the charges are made. 

Now, the defendant in this case, as in all other criminal cases, is presumed to be 
innocent of each and all of the offenses charged against him, and that presumption 
abides with him as his protection and shield until the presumption is overcome by 
evidence satisfying your minds, beyond a reasonable doubt, of his guilt. You can 
not convict the defendant on any of the counts unless you are satisfied, beyond a 
reasonable doubt, that he is guilty of the offense as charged against him. That reason- 
able doubt, if you have such, must arise out of the evidence in the case, or lack of 



48 SPEECH OF SEiSTATOR ROBERT M. ' LA FOLLETTE. 

evidence. It does not mean a mere possibility of innocence. If you can conscien- 
tiously say to yourselves, after you have fairly and impartially examined all of the 
testimony in the case, that you are not satisfied of the defendant's guilt, then you have 
a reasonable douibt, and you should acquit him. But if you can say to yourselves 
under your oaths, after a fair examination and weighing of all the evidence in the case 
that you are satisfied of the defendant's guilt on any of the counts, then you have no 
reasonable doubt as to the offense charged in such counts, and you should convict 
him. Otherwise you will find him not guilty. 

You must consider not only the testimony in determining whether or not you will 
find the defendant guilty, but must apply that testimony to the law. You can not 
convict the defendant on the facts alone, regardless of how they may affect your indi- 
vidual sense of right conduct; but you must apply those facts to the law in order to 
determine whether or not the particular crime defined in the statute has l^een com- 
mitted by the defendant as charged against him. If you reach the conclusion, or if 
you are not satisfied, l:ieyond a reasonable doubt, that he did commit any of these 
offenses defined in the statute, you must acquit him. So the only inquiry in all the 
even-nimibered counts is, first, whether or not the defendant used the language, or 
the substance of the language, set out in these counts, and if you find that he did, 
beyond a reasonable doubt, then whether or not that language and its use by him was 
an attempt to A\^illfully cause insubordination, disloyalty, mutiny, or refusal of duty 
in the land and naval forces of the United States. On all of the odd-numbered counts 
the only inquiry is, first, whether or not the defendant used the language, or its sub- 
stance, as charged in those counts, in the presence of the parties named, and whether 
or not, if he did use it, and you so find beyond a reasonable doubt, in using it he 
Avillfully olistructed the recruiting or enlistment service of the United States to the 
injury of the service. 

Now, you take the law from the court. That is the duty imposed upon the court 
under its oath, to give you the law. You take the facts, and determine what the real 
facts are from the testimony gi^'en upon the stand by the witnesses. That is your 
duty, to determine what those facts are. You have nothing whate^'er to do with 
determining what the law is that applies to a case, and the court has nothing to do 
with determining what the facts are in a particular case. The court may, indeed it 
sometimes does, express its opinion about what the facts are, but such opinion so ex- 
pressed by the court does not bind the jury. If a juror thinks otherwise, if under 
his oath he honestly believes the facts to be otherwise, it is his duty to ignore that 
the court said about the facts, because the law makes the jury responsible for the 
determination of the facts. Thus, having gotten the facts from the testimony and the 
law from the instructions of the court, you apply these facts as you find them, under 
your oaths, to the law as given you by the instructions of the court, and on whose 
facts and that law you return a verdict, and on that and nothing else. When you 
have thus reached your verdict you will have, in every sense, discharged the duties 
of jurors and complied with the obligation of your oath. Now, in determining what 
the facts are you are not requii'ed to, indeed you can not, blindly accept what each 
witness testifies as to the facts, because in that event, if there were a conflict, you 
would have to find the facts both ways. You consider and weigh the testimony in 
order to determine what the real facts are, and in so doing you take into consideration 
the intelligence of the witness as he appears upon the stand, his fairness or unfairness, 
his disposition to tell the facts as he thinks they are, his interest or prejudice in this 
case one way or the other, or in the result of the trial. If you should find and believe 
that any witness has willfully and knowingly sworn falsely to any material fact you 
can disregard his testimony, except in so far as he is corroborated by other testimony 
and other facts and circumstances in the case. 

Thus, with these guides, gentlemen of the jury, you consider and weigh the evidence, 
and apply the law as given you by the court. In this manner you will find 10 verdicts, 
one on each count. For the purpose of enabling you to put your verdicts in proper 
form the clerk has prepared blanks, two on each of the counts, one of guilty and one of 
not guilty. You will use, as to each count, one of these forms, and when you have 
agreed on your 10 verdicts and your foreman, whom you still select, has signed them, 
you will bring them into court. 

Mr. Appell. If your honor please, I would like to call your attention to this portion 
of the instructions, which 1 believe I have copied correctly : However reprehensible 
it may be to criticize the war and the conduct of the war, etc., that criticism is not a 
violation of the act unless it is made in an attempt to cause mutiny, and so on, as set 
forth in the odd-numbered counts, or unless that criticism is made in an effort to 
willfully obstruct the recruiting, and so on. 

The Court. 'Effort" should not be in there. Unless that criticism is made will- 
fully to obstruct, it should be. 



SPEECH OF SENATOR EOBEET M. LA FOLLETTE. 49 

Mr. Tbdrow. The court's instructions under the odd-numbered counts seem to 
confine insubordination, disloyalty, mutiny, or refusal of duty to acts to be committed 
after the soldier enters the Army. 

The Court. I think it applies only to the military or naval forces. It might be the 
military or naval forces then organized or those that were to be later organized out of 
the en listment or recruiting of the men . 

Mr. Tedrow. Does not the act apply to the raising of the Army, not only by volun- 
tary enhstment in the National Army but also by the draft? 

The Court. Yes; that is what is meant by recruiting or enlistment. Willfully to 
obstruct recruiting or enlistment. 

Mr. Tedrow. So the term "naval and militaiy forces of the United States" applies 
to all male citizens of the ages fixed by the selective-draft act. 

The Court. After they become a part of the militaiy or naval forces. 

Mr. Tedrow. That's just the point. I don't so read the act. 

The Court. I think it applies, that part of the crime, that is, "to willfully cause or 
attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military 
or naval forces," means the actual forces. 

Mr. Tedrow. Well, then, my exception is that the insubordination, disloyalty, 
mutiny, or refusal of duty may be committed by one or applied to one who is of con- 
scrip tive age prior to his actual entrance into the Army or Navy. 

The Court. I do not think so. I do not see any other purpose than to apply the 
first offense to the actual forces. 

Mr. Tedrow. That has not been my construction, and mine is the construction 
placed upon it by some of the district courts. 

The Court. There has been some confusion on these war statutes, but I have not 
seen any on this. I think Congress attempted to sharply distinguish, as to the military 
and naval forces, acts in an attempt to cause insubordination, disloyalty, mutiny, etc., 
on the one hand, and on the other hand to obstruct the recruiting and enlistment 
service. _ I think you are right, however, as to the first defined crime reaching a 
case which might be an attempt to cause insubordination, disloyalty, munity, or 
refusal of duty by one who was not yet in the naval or militaiy forces, but who through 
enlistment might get there, and after getting there cause it. 

(February 9, 1918.) 



Charge to the Jury in District Court of the United States for the District 
OP South Dakota, Relating to Espionage Act (Act of June 15, 1917). 

[Note. — The defendants were 27 German farmers of Hutchinson County, S. Dak. 
They signed and caused to be sent to the county sheriff, county treasurer, and county 
auditor of that county and to the governor of South Dakota a so-called "petition" 
reading as follows: 

"Whereas you were elected to your office by a majority of the people of Hutchin- 
son County upon the pledge that you would serve the interests of the people of said 
county, and whereas in the crisis which the law and the draft law was forced upon us 
against our will, and without referendum of the people, there can be no doubt in your 
mind but what over 90 per cent of the people are against it. 

"The governor of our State has fixed the draft quota of 116 men on Hutchinson 
County, while he exempted Minnehaha and other counties, which is a pure political 
act influenced by our daily papers of Sioux Falls and Mitchell. This is an injustice 
to Hutchinson County, and while all that is going on you have not raised your voice 
in protest. 

"We demand that you protest, with the aid of our other county officers, to the gov- 
ernor that he recall his quotas and fix them equal in all counties according to actual 
population. 

"We demand that you call for a referendum of the people on the draft law and on 
war. 

"We absolutely demand that you should stand for repudiation of all war debts, 
and we demand that you serve the people. 

"We, the undersigned, are organized under the Socialist Party, and we have the 
people with us, and we demand immediate answer and action; and if we fail to get 
it we demand your resignation and will spell sure defeat for you and your party."] 

51951—18 4 



50 SPEECH OF SEISTATOK EGBERT M. LA FOLLETTE. 

In the district Court of the United States for the District of South Dakota, Southern 
Di/ision. United States of America, plaintiff, v. Baltzer and 26 othero, defend- 
ants. 

CHARGE TO JURY. 

YouMANS, District Jud;5e: Gentlemen of the jury, the indictment in this case con- 
tains seven different counts or charges. The first three counts are vased upon section 
3 of the act of Congress of the United States, approved June 15, 1917. The act is 
entitled "An act to punish acts of interference with the foreign relations, the neu- 
trality, and the foreign commerce of the United States, to punish espionage, and bet- 
ter to enforce the criminal laws of the United States, and for other purposes." Said 
section 3 of the act, so far as applicable here, reads as follows: 

"^\Tioever, when the United States is at war, shall willfully make or convey false 
reports or false statements with intent to interfere with the operation or success of 
the military or naval forces of the United States or to promote the success of its 
enemies, and whoever, when the United States is at war, shall willfully cause or 
attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the mili- 
tary or naval forces of the United States, or shall willfully obstruct the recruiting or 
enlistment service of the United States to the injury of the service or of the United 
States" shall be punished as pro\"ided in the section. 

You are instructed that the testimony introduced by the Government is not sufii- 
cient to warrant a conAiction upon the first and third counts, based iipon the section 
just read to you. You will, therefore, consider the testimony only as it applies to 
the second count in the indictment, based upon that section. 

The second count charges the defendants with willfully obstructing the recruiting 
and enlistment service of the United States to the inji rv of the United States. 

Counts 4 and 5 of the indictment are based upon section 4 of the same act. That 
eection, in fo far as applicable to this case, reads as follows: 

"If two or more persons conspire to violate the provisions of sections two and three 
of this title, and one or more of such persons does any act to effect the object of the 
conspiracy each of the parties to the conspiracy shall be punished, as in said sections 
provided in the case of the doing of the act the accomplishment of which is the 
object of such conspiracy." 

You ar3 instructed that the testimony introduced by the Government is not suffi- 
cient to warrant a conviction as to counts i and 6, based upon the section just read 
to you. You will therefore consider the testimony with regard to count 5, based upon 
the eaid last-mentioned section. Count 5 charges the defendants with conspiring to 
violate the provisions in section 3, in that, it is alleged, they conspired willfully to 
obstruct the recridtrng or enlistment service of the United States to the injury of the 
United States. 

Count 7 of the indictment is based upon section 21 of the Penal Code of the United 
States. That section, in so far as applicable here, reads as follows: 

"If two cr more persons in any State, Territory, or District conspii'e to prevent 
by force, intimidation, or threat,' any person from accepting or holding any office, 
trust, or place of confidence under the United States or from discharging any duties 
thereof," shall be punished as provided in the section. You will note that in count 2 
the defendants are charged with willfully obstructing the recruiting and enlistment 
service of the United States, and in count 5 the defendants are charged with forming 
a conspiracy to obstruct willfully the recruiting or enlistment service of the United 
States to the injui'y of the United States. In those two counts the defendants are 
charged with combining and confederating t. commit an offense and also mth actually 
committing the offense, the commission of which offense was the object of the con- 
spiracy. Under the laws of the United States men may be convicted upcn the charge 
of conspiracy to violate a law of the United States and they may also be convicted for 
committing 'the unlawful act, constituting the object of the conspiracy. 

If you find from the testimony, beyond a reasonable doubt, that the defendants or 
any one or more of them willfully obstructed the recruiting or enlistment service of 
the United States, to the injmy of the United States, as charged in the second count 
of the indictment, then you should find such defendants, or such one or more of them, 
guilty on the second count. If y( u do not find, beyond a reasonable doubt, that any 
one of said defendants willfully obstructed the recruiting or enlistment service of the 
United States to the injury of the United^ States, then you should find the defendants 
not guilty on the second count of the indictment. 

If you find from the testimony, beyond a reasonable doubt, that any two or more of 
the defendants conspired or agreed among themselves willfully to obstruct the recruit- 
ing or enlistment service of the United States, to the injury of the United States, as 
charged in the fifth count cf the indictment, then you should find such two or more 



SPEECH OF SEISTATOR ROBERT M. LA FOLLETTE. 51 

of such defendants guilty upon the said fifth count of the indictment. If you do not 
find, beyond a reasonable doubt, that any two or more of the defendants conspii-ed 
and agreed together willfully to obstruct the recruiting cr enlistment service of the 
United States, to the injury of the United States, you should find the defendants not 
guilty on the fifth count of the indictment. 

With reference to the fifth and seventh counts, in which the defendants aie charged 
with conspiracy, in the fifth count, to violate the clause in section 3 of the espionage 
act, to which your attention has been called, and in the seventh count, charging a con- 
spiracy to prevent the governor of the State of South Dakota, by intimidation and 
threat, from performing his duties under the law of the United States commonly called 
the selective-draft act, you are instructed that a conspiracy is an agreement or under- 
standing between two or more persons to do an unlawful act. Wherever two or more 
persons act together understandingly for the accomplishment of such an unlawful 
purpose, there is a conspiracy, although there may not have been a word spoken 
between them regarding it. fevery scheme to commit an offense against the United 
States in which two or more pers'^ns cooperate understandingly to carry it out is a 
conspiracy in fact and effect. This is true, even thoiigh the parties to the agreement 
or understanding may not at the time be aware that their acts will render them in law 
guilty of conspiracy. If they are knowingly working together to a common purpose, 
and that purpose is the unlawful act charged as their object, they are as guilty as 
though they were perfectly aware that their acts amounted in lawto an unlawful con- 
spii'acy. Ignorance of the' law is no defense to an unlawful act willfully done, and it 
it therefore immaterial that the parties committing such an act be not cognizant of 
the legal consequences. 

Therefore if you find that these defendants were intentionally working together 
to a common purpose in committing the acts charged and that those_ acts were of a 
character that did or would result in obstructing the recruiting or enlistment service 
of the United States, then they would be guilty of conspiring to commit the offense 
charged in the fifth count of the indictment. 

If you find from the testimony that the defendants were intentionally working 
together to a common pm-pose in committing the several acts charged and that those 
acts were acts of intimidation and thr2at made to prevent Peter Norbeck, the governor 
of South Dakota, fr^m discharging the duties of his office as governor of South Dakota 
and as an officer of the United States in executing the provisions of the law of the 
United States, commonly callel the selective-draft act, then they would be guilty 
of conspiring to commit the offense charged in the seventh count of the indictment. 
This would be true, although the term "conspiracy" may never have been employed 
among them and although no suggestion may ever have been made by any one of 
them that their purpose was to obstruct the "recruiting or enlistment service of the 
United States to the injury of the United States, as charged in the fifth count, or to 
intimidate the governor of the State of South Dakota in the performance of his duties, 
as charged in the seventh count. 

Section 4 of the espionage act provides that "if any two or mere persons conspire 
to violate the provisions of section 2 or 3 of " the same act, and one or more of them 
does some act in furtherance of the object of the conspiracy, all of the parties thereto 
are equally guilty. The essence of the crime, therefore, is the unlawful agreement or 
understanding between the parties to do an act of a criminal nature. It is a crime 
against the United States to obstruct willfully the recruiting or enlistment service 
of the United States to the inquiry of the United States, and a conspiracy to commit 
that crime is also made punishable when any act is done to carry into effect the object 
of the agreement and conspiracy. 

The formation or existence of a conspiracy may be shown either by_ direct or posi- 
tive evidence, such as declarations or writings or by circumstantial evidence showing 
that the parties charged acted in concert or in a manner or under circumstances war- 
ranting the inference that their acts were the result of previous understanding or 
agreement between them. In other words, the existence of a conspiracy may be 
manifested either by words or deeds. In this case, therefore, even though you may 
find that there was no open or express declaration of purpose on the part of these de- 
fendants to unite in doing the acts charged, yet if you find that those acts were com- 
mitted in a manner or under circumstances which, by reason of the relation of the de- 
fendants at the time and the methods used by them, give rise to the reasonable and 
just inference that they were done as the result of a previous understanding between 
them, then you will be justified in finding that the conspiracy existed between them 
to do such acts. Nor is it necessary in the formation of a conspiracy that all of the 
parties thereto shall actually meet together at one and the same time and place and 
discuss this purpose or the means of carrying its object into effect, or in any formal 



52 SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 

way to agree upon the methods to be pursued in accomplishing such design. A con- 
spiracy may be formed and carried out without the express declaration of its purpose 
by any of those concerned. It is sufficient if the circumstances shown satisfy you, 
beyond a reasonable doubt, that the parties were acting together toward a common end 
and that such end was the unlawful act or thing charged as the object of the alleged 
conspiracy. 

"When an unlawful end is sought to be effected, and two or more persons actuated by 
the same purpose of accomplishing that end purposely work together in any way in 
furtherance of the unlawful purpose, every one of such persons becomes a party to the 
conspii'acy, although the part that some of them took therein is a minor or subordi- 
nate one or is to be executed separately or at a distance from the other participants. 
It is not essential to the guilt of the defendants that the conspiracy proved eventually 
eucceseful, so long as it appears that some overt act, charged in the indictment, was 
done by some one of the parties to the conspiracy for the purpose of carrying the same 
into effect. Where several persons are shown to have combined together for the same 
unlawful pui'pose, the law is that an act done by any one of the parties in pursuance 
of the preconcerted plan and to effect the purpose of the conspiracy becomes the act 
of each party thereto and evidence of such act is admitted as evidence against all. 

While the declaration of a coconspirator can not alone prove the existence of a 
conspiracy itself, yet any declaration or statement made by one of the parties, during 
the existence and in furtherance of the unlawful combination, when it is established, 
is not only evidence against the one making such declaration but is evidence against 
the other parties thereto, who are as responsible for such declarations or statements 
as if made by themselves. But you will understand that before aiiy such statements 
or declarations can be considered as evidence against the defendants other than the 
one making them, the circumstances must be such as to satisfy you that a conspiracy 
had been formed and then existed to do the act charged, and that the defendant 
against whom such declarations are to be used was a party thereto. 

You will note that section 3 of the espionage act, read to you, requires that the 
acts constituting the offense must have been done willfully. lii order to warrant a 
conviction on the second count of the indictment it must appear, beyond a reasonable 
doubt, that the defendants did the acts charged willfully; that is, it must appear that 
the acts were done with knowledge on their part of what they were doing and that 
with such knowledge they intentionally did the acts, and they must have intended 
and had the pm'pose at the time that the result of the doing of such acts would obstruct 
the recruiting or enlistment service of the United States to the injury of the United 
States. 

In order to warrant a conviction upon the fifth count of the indictment, which 
charges a conspiracy to obstruct, willfully, the recruiting or enlistment service of 
the United States to the injury of the United States, it must appear beyond a reason- 
able doubt that the defendants formed such a conspiracy and that they subscribed 
their names to the writings set forth in the fifth count of the indictment and intro- 
duced in evidence and did send, show, and deliver and cause the said writings to be 
sent, presented, shown, and delivered by means of the mails of the United States to 
Peter Norbeck, governor of South Dakota, Bert Bromley, Kenneth Sellers, and Harold 
Bowering, with the intent, willfully and feloniously, to obstruct the recruiting or 
enlistment service of the United States to the injury of the United States, and that 
each of the defendants then and there well knew the character and contents of the 
statements so made in writing. 

In regard to the seventh count of the indictment, which charges the defendants 
with conspiring to prevent, by intimidation and threat, Peter Norbeck, the governor 
of South Dakota, from discharging the duties imposed upon him under the act of 
Congress, approved May 18, 1917, entitled "An act to authorize the President to 
increase temporarily the Military Establishment of the United States," you are in- 
structed that in said act of Congress it is provided in section 6 thereof — 

"That the President is hereby authorized to utilize the service of any or all depart- 
ments and any or all officers or agents of the United States and of the several States, 
Territories, and the District of Columbia, and subdivisions thereof, in the execution 
of this act, and all officers and agents of the United States and of the several States, 
Territories, and subdivisions thereof, and of the District of Columbia, and all persons 
designated or appointed under regulations prescribed by the President, whether such 
appointments are made by the President himself or by the governor or other officer 
of any State or Territory, to perform any duty in the execution of this act, are hereby 
required to perform such duty as the President shall order or direct, and all such 
officers and agents and persons so designated or appointed shall hereby have full 
authority for all acts done by them in the execution of this act by the direction of 
the President." 



SPEECH OF SENATOR ROBERT M. LA FOLLETTE, 53 

The said act also provides as follows : 

"Quotas for the several States, Territories, and the District of Columbia or subdi- 
visions thereof, shall be determined in proportion to the population thereof, and 
credit shall be given to any State, Territory, District, or subdivision thereof, for the 
number of men who were in the military service of the United States as members of 
the National Guard on April first, nineteen hundred and seventeen, or who have 
since said date entered the military service of the United States from any such State, 
Territory, District, or subdivision, either as members of the Kegular Army or the 
National Guard." 

You are also instructed that under the provisions of such act of Congress the Presi- 
dent was authorized to prescribe rules and regulations for the carrying into effect 
the objects of said act of Congress. Pursuant to such authority the President, among 
others, promulgated the following rule: 

"The quotas to be called and furnished by the respective local boards shall be 
determined in accordance with said act of Congress and regulations to be hereafter 
prescribed by the President. The President will cause the quotas for the several 
States, Territories, and the District of Columbia to be determined and notice thereof 
to be communicated to the governor of each State and Territory and to the Commis- 
sioners of the District of Columbia. The governor of ea'^h State and Territory and the 
Commissioners of the District of Columbia, a'^ting for and by direction of the President, 
shall thereupon, in accordance with regulations to be hereafter prescribed by the 
President, determine the quotas to be called and furnished by the several local boards 
within such State, Territory, or District from the persons whose registration cards are 
within the jurisdiction of the respective local boards therein, and shall communicate 
notice thereof to each local board within such State, Territory, or District." 

Under said act of Congress and the rules promulgated by the President, it becomes 
and was the duty of Peter Norbeck, the governor of South Dakota, to perform such 
services for the United States under the act of Congress last referred to, to effect the 
purposes of said act in regard to persons subject to the draft in the State of South 
Dakota, and it became and was the duty of the governor of the State of South Dakota 
to allow to each county in the State credit for the number of men, resident in such 
•county, who were in the military service of the United States as members of the 
National Guard on April 1, 1917, or who, after that date, entered the military service 
of the United States from any such county, either as members of the Regular Army 
or the National Guard. If the defendants, or any two or more of them, by intimida- 
tion or threat sought to prevent the governor of South Dakota from performing his 
duties under such act of Congress and the rules promulgated by the President of the 
United States, then the defendants, or so many of them as made such threat or attempt 
at intimidation, are guilty as charged in the seventh count of the indictment. It 
need not appear that the governor was actually intimidated or prevented from doing 
his duty. 

You are instructed that if any of the defendants did not know what was contained 
in the writings and did not intend to obstruct willfully the recruiting or enlistment 
service of the United States to the injury of the United States, and did not conspire 
together for that purpose and did not know of any thi-eat contained in such writings, 
then you are instructed that such of the defendants, who did not know the contents 
of such writings are not guilty of a violation of the law and you should acquit them. 
If, however, you find that any of the defendants knew what was contained in the 
writings and said writings were made and sent by them for the purpose of obstruct- 
ing, wil'fully, the recruiting and enlistment service of the United States to the injury 
of the United States, then you should find such defendants as had such knowledge 
and purpose guilty under the second and fifth counts of the indictment. If you 
find that any of the defendants knew of the contents of the writings and that such 
writings contained threats and that such tlu'eats were made for the purpose of intimi- 
dating the governor and preventing him from performing his duties under the selec- 
tive draft act, you should find such defendants as had such knowledge and purpose 
and did the overt acts charged, guilty under the seventh count of the indictment. 

You may find the defendants guilty under one or more of the counts of the indict- 
ment and not guilty as to others. 

It appears from the undisputed testimony that the defendant August Frederich 
prepared the writings set out in the indictment and introduced in evidence and he 
has testified with regard to his intention in preparing such writings. A man is pre- 
sumed to intend the natural and usual consequences of his acts. If the natural and 
usual consequences of the acts admitted by the defendant, August Frederich, to have 
been done by him tend to sustain the allegations made in the second, fifth, and sev- 
enth counts of the indictment, or either of them, then you are to determine whether 
all of the facts in testimony in the case ])ear out the explanation of the intention of 



54 SPEECH OF SEIfATOE ROBERT M. LA FOLLETTE. 

the said defendant, Frederich, as stated by him, or raise in your minds a reasonable 
doubt as to the truth of the allegations made in said counts of the indictment. 

You are to determine what were the natural and necessary effect of the acts of the 
defendants and whether this effect was the purpose which the defendants had in 
mind when they did the act. In determining the guilt or innocence of any one of 
the defendants, you are to take all of the facts and cu'cumstances in the case into 
consideration, the famiUarity or lack of famiUarity with the Enghsh language of each 
of the defendants, the testimony with regard to the good reputation of each of them, 
and from all of such testimony determine whether their guilt has been shown upon 
any one or more of the three counts, beyond a reasonable doubt. 

Testimony has been introduced to the effect that each one of the defendants bears 
a good reputation in the community in which he resides for truth, veracity, and good 
citizenship. Such testimony should be considered by you in connection with all of 
the other testimony in the case. It may, by itself, raise in your minds a reasonable 
doubt as to the guilt of the defendants or one or more of them. 

If, after considering all of the evidence in the case, you have a reasonable doubt as 
to the guilt of the defendants, or any one or more of them, you should return a verdict 
of not guilty as to all defendants with regard to whom you entertain such doubt. 
If, however, you are convinced of the guilt of the defendants, or any one or more of 
them, on either one of the three counts submitted to you, you should find the defend- 
ants, or any one or more of them of whose guilt you are so convinced, guilty on such 
one or more of the three counts mentioned. 

Each of the defendants has entered his plea of not guilty. He is presumed to be 
innocent until the testimony in the case overturns that presumption and estabUshes 
his guilt beyond a reasonable doubt. 

A reasonable doubt is not a conjectural or a captious or imaginary doubt. It is not 
something that must be sought for or conjured up, but it is that feehng which arises 
naturally in your minds from the consideration of all the evidence in the case and 
prevents you from reaching a conclusion that satisfies you of the defendant's guilt. 
It is the opposite of an unreasonable doubt. If, after considering all the evidence 
in the case, your judgment is in that state of uncertainty that would prevent you from 
acting if a most important matter of your own were involved, then you are instructed 
that siich a condition of mind constitutes a reasonable doubt as to such defendant's 
guilt, and you should acquit him; but, if after such consideration you are satisfied of 
such defendant's guilt to that degi'ee of certainty that would induce you to act if a 
most important matter of your own were involved, then you are instructed to find 
such defendant guilty. 

You are the sole judges of the testimony and the credibility of the witnesses. It is 
yom'duty to reconcile the testimony, if you can; that is, to reach a conclusion which 
will permit the testimony of all the witnesses to stand, if that can be done. Every 
witness is presumed to speak the truth until the contrary appears. The contrary 
may appear in a number of ways. One or more witnesses may testify to a state of 
facts and another one or more may testify to a state of facts directly opposite. It is 
then for you to say which you will believe. One witness may state facts which 
modify or explain facts testified to by another. This may arise because one has had 
better means of knowing that about which he testifies than the other. Ihe manner 
and deportment of one witness while testifying may lead you to believe that his 
story is true, while the manner and deportment of another witness may convince you 
that his is not trustworthy. The interest of one witness in the result cf the trial may 
be so apparent as to lead you to discredit his statement, or the improbability of the 
story of one witness may lead you to disregard it in favor of the more probable story of 
another. All these things must be taken into consideration. You are to bring to 
the consideration of the testimony youi' impartial and unbiased judgment, and judge 
the evidence of each witness by the reasonableness or unreasonableness of his story; 
the means he has of knowing that about which he testified; his interest, if any; Ms 
bias or prejudice, if he manifests any, and give all the testimony of each witness the 
weight it should have in reaching a conclusion as to what is the truth of the case. 



TITLE III. 
CONGRESSIONAL PRECEDENTS. 

From time to time during the Civil War Members of Congress and 
other officers, sworn to support and uphold the Constitution, gave 
public utterance to sentiments of the same sort to which we have 
referred. 

The speech made by Senator Breckinridge, of Kentucky, on the 
floor of the Senate, during the consideration of a bill to suppress 
insurrection and sedition, is a fair illustration. James G. Blaine, in 
his "Twenty Years of Congress" (p. 344), gives an interesting 
account of this speech. To quote from his book: 

He had returned to Washington under a cloud of suspicion. He was thoroughly 
disti'usted by the Union men of Kentucky, who had in the popular election won a 
noble victory over the foes of the National Government, of whom Mr. Breckinridge 
had been reckoned chief. No overt act of treason could be charged against him, but 
the prevalent belief was that his sympathies were wholly with the Government at 
Richmond. He opposed every act designed to strengthen the Union, and continually 
found fault with the attitude and with the intentions of the National Government. 
He was considered by many to be in Washington only that he might the more efficiently 
aid the cause of the Confederacy. During the consideration of a "bill to suppress 
insurrection and sedition," a debate arose between Mr. Breckinridge and Mr. Baker, 
the new Senator from Oregon, which fixed the attention of the country upon the 
former, and subjected him to general condemnation in the loyal States. 

The Oregon Senator, with his ardent nature, and his impulse to take part in every 
conflict, had raised a regiment of volunteers principally composed of men from the 
Pacific coast. It was known as the California Regiment, and was encamped near 
Washington. On the 1st of August, while performing the double and somewhat 
anomalous duty of commanding his regiment and representing Oregon in the Senate, 
Mr. Baker entered the Chamber in the full uniform of a colonel of the United States 
Army. He laid his sword upon his desk and sat for some time listening to the debate. 
He was evidently impressed by the scene of which he was himself a conspicuous 
feature. Breckinridge took the floor shortly after Baker appaared and made a speech, 
of which it is fair criticism to say that it reflected in all respacts the views held by the 
members of the Confederate Congress at Richmond . 

Upon inspection of the Congressional Globe we find the concluding 
remarks of Senator Breckinridge, to which Mr. Baker took exception, 
to be as follows: 

I have said, sir, that we are on the wrong track. Nothing but ruin, utter ruin, to 
the North, to the South, to the East, to the West will follow the prosecution of this 
contest. You may look forward to innumerable armies; you may look forward to 
countless treasures — all spent for the pui-pose of desolating and ravaging this con- 
tinent; at the end leaving us just where we are now; or if the forces of the United 
States are successful in ravaging the whole South, what on earth ^vill be done with it 
after that is accomplished? Are not gentlemen now perfectly satisfied that they have 
mistaken a people for a faction? Are they not perfectly satisfied that to accomplish 
their object it is necessary to subjugate, to conquer — aye, to exterminate — nearly 
ten millions of people? Do you not know it? Does not everybody know it? Dees 
not the wcrld know it? Let us pause, and let the Congress of the United States respond 
to the rising feeling all over this land in favor of peace. War is a separation; in the 
language of an eminent gentleman now no more, it is disunion, eternal and final 
disunion. We have separation now; it is only made worse by war, faid an utter 
extinction of all those sentiments of common interests and feeling which might lead 
to a political reunion founded upon consent and upon a conviction of its advantages. 

55 



.56 SPEECH OF SENATOR ROBERT M. LA POLLETTE. 

Let the war go on, however, and soon, in addition to the moans of widows and orphans 
all over this land, you will hear the cry of distress from those who want food and the 
comforts of life. The people will be unable to pay the grinding taxes which a fanatical 
spirit will attempt to impose upon them. Nay, more, sir; you will see further separa- 
tion. I hope it is not "the sunset of life gives me mystical lore," but in my mind's 
eye I plainly see "coming events cast their shadows before. " The Pacific slope now, 
doubtless, is devoted to the union of States. Let this war go on till they find the 
burdens of taxation greater than the burdens of a separate condition, and they will 
assert it. Let the war go on until they see the beautiful features of the old Confed- 
eracy beaten out of shape and comeliness by the brutalizing hand of war and they 
will turn aside in disgust from the sickening spectacle and become a separate nation. 
Fight 12 months longer and the already opening differences that you see between 
New England and the great Northwest will develop themselves. You have two 
confederacies now. Fight 12 months and you will have three; 12 months longer and 
you will have four. 

I will not enlarge upon it, sir. I am quite aware that all I say is received with a 
sneer of incredulity by the gentlemen who represent the far Northeast; but let the 
futiu-e determine who was right and who was wi'ong. We are making our record here; 
I, my humble one, amid the sneers and the aversion of nearly all who surround me, 
giving my votes and uttering my utterances according to my convictions, with but 
few approving voices, and surrounded by scowls. The time will soon come, Senators, 
when history will put her final seal upon these proceedings, and if my name shall be 
recorded there, going along with yours as an actor in these scenes, I am willing to abide, 
fearlessly, her final judgment. 

Recurring again to the account of Mr. Blaine : 

Col. Baker evidently grew restive under the words of Mr. Breckinridge. His face 
was aglow with excitement and he sprang to the floor when the Senator from Ken- 
tucky took his seat. His reply, abounding in deniuiciation and invective, was not 
lacking in the more solid and con\dncing argument. He rapidly reviewed the situa- 
tion. He depicted the character of the rebellion, described the position of Breckin- 
ridge, and passionately asked "What would have been thought, if, in another Capitol, 
in a yet more martial age, a Senator, with the Roman purple flowdng from his shoul- 
ders, had risen in his place, surrounded by all the illustrations of Roman glory, and 
declared that advancing Hannibal was just, and that Carthage should be dealt with 
on terms of peace? What would have been thought, if, after the battle at Cannse, a 
Senator had denounced every levy of the Roman people, eveiy expenditure of its 
treasure, every appeal to the old recollection and the old glories?" 

Mr. Fessenden, who sat near Baker, responded in an undertone "he would have 
been hurled from the Tarpeian Rock." Baker, with his aptness and readiness turned 
the interruption to still further indictment of Breckinridge: "Are not the speeches 
of the Senator from Kentucky," he asked, "intended for disorganization? Are they 
not intended to destroy our zeal? Are they not intended to animate our enemies? 
Sir, are they not words of brilliant, polished treason, even in the very Capitol of the 
Republic?" 

It is impossible to realize the effect of the words so eloquently pronounced by the 
Oregon Senator. In the history of the Senate, no more thrilling speech was ever de- 
livered. The striking appearance of the speaker in the uniform of a soldier, his 
superb voice, his graceful manner, all united to give to the occasion an extraordinary 
interest and attraction. 

The reply of Mr. Breckinridge was tame and ineffective. He did not repel the fierce 
characterizations with which Col. Baker had overwhelmed him. He did not stop to 
resent them though he was a man of unquestioned courage. One incident of his 
speech was grotesquely amusing. He was under the impression that the suggestion 
in regard to the Tarpeian Rock had been made by Mr. Sumner, and he proceeded to 
denounce the Senator from Massachusetts with bitter indignation. Mr. Sumner 
looked surprised, but having become accustomed to abuse from the South, said noth- 
ing. When next day it was shown by the Globe that Mr. Fessenden was the offender, 
Mr. Breckinridge neither apologized to Mr. Sumner, nor attacked the Senator from 
Maine. The first was manifestly his duty. From the second he excused himself for 
obvious reasons. After his experience with Baker, Breckinridge evidently did not 
court a conflict mth Fessenden. 

The account of this colloquy between the Senator from Oregon 
and Senator Breckinridge is the more impressive when we recall 
that Senator Baker lost his life in the battle of Balls Bluff in Decem- 
ber following. Senator Breckinridge meanwhile had joined the 



SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 57 

rebellion and at the next session of the Senate was expelled from its 
membership; the resolution for his expulsion being made in Mr. 
Blaine's words: "as offensive as possible, curtly declaring 'John C. 
Breckinridge, the traitor, be, and he is hereby, expelled from the 
Senate,' " which resolution was adopted without a negative vote. 

To succeed to the seat of the patriotic Baker, the governor of 
Oregon, who happened to be himself in sympathy with the cause of 
the rebellion, or at least opposed to forcible resistance to the doctrine 
of secession, appointed one Benjamin Stark. This appointment 
-occasioned a protracted and bitter fight on the floor of the Senate. 
On January 2, 1862, the credentials oi Mr. Stark were first presented 
to the Senate and request made that the oath of office be adminis- 
tered. Objection was promptly made by another Senator, who 
presented affidavits which stated that the appointee — 

is understood by everybody in Ms vicinity to be an open and avowed supporter of tlie 
secession, that he has openly defended the South in seceding and has given utterance 
to sentiments totally at war with the institutions and preservation of our country, 
such as approving the attack on Fort Sumter, making declarations to the effect that 
in the event of a civil war, which in fact had then already commenced, he would sell 
his property in Oregon and go South and join the rebels; that they were right; that 
Mr. Davis's government was the only government left; that there was in fact no 
government of the Union at all. 

He therefore moved that the oath be not administered for the 
present, and that the credentials of Mr. Stark be referred to the 
Committee on Judiciary. After some debate the matter was put 
over by the Senate until a later day. On January 10 the matter of 
referring to the credentials was again before the Senate (Con- 
gressional Globe, p. 265). The point was made by Senator Bayard 
that the proper remedy was not to refuse to admit him to the Senate 
for the reason that loyalty was not a qualification; that the Consti- 
tution prescribed the qualifications, which were that the Senator be 
of a certain age and a citizen of the United States, etc. ; and that Stark 
having been appointed by proper authority, the oath should be 
administered; and the remedy was, after a hearing, to expel him. 
Senator Sumner, replying, said (Congressional Globe, p. 286) : 

The Senator says the Senate should not at this time consider the loyalty of an appli- 
cant for an office here, for the reason that under the Constitution loyalty is not a 
qualificaticn. Sir, why is an applicant that comes to this body to take a seat, to go 
to your chair to take an oath to suppc rt the Constitution of the United States, if it is 
not to give the most open test before the country and before God of his loyalty to the 
Union and to the Constitution. And yet, sir, the Senator tells us that in the face of 
the evidence now lying on that table leading us to doubt the loyalty of the applicant, 
leading us to doubt the very oath which he is to take, we can not go into any considera- 
tion of loyalty; that, in sliort, the loyalty of a Senator under the Constitution of the 
United States is no part cf his qualifications. I believe I do not do injustice to the 
argument of the Senator and believe that I answer it on the grounds of reason com- 
pletely. 

An amendment was thereupon proposed, whereby the oath should 
be administered to the apphcant and at the same time the papers 
relating to his loyalty be referred to the Committee on Judiciary. 
(Congressional Globe, p. 269.) The amendment was lost and the 
original motion to not administer the oath and to refer the cre- 
dentials to the committee was thereupon carried. (Congressional 
Globe, p. 269.) 

The committee, on February 7, 1862, without expressing any 
opinion as to the effect of the papers before them upon any subsequent 



58 SPEECH OF SEISTATOE EGBERT M. LA FOLLETTE. 

proceedings in the matter, reported back a resolution that Mr. 
Stark was entitled to take the constitutional oath of office. (Congres- 
sional Globe, p. 696.) After a protracted debate, Senator Sumner 
moved an amendment that he was not entitled to take the oath 
without a previous investigation. The point was pressed throughout 
the debate that the loyalty of the Senator was not a proper test as to 
his right to take the oath of office, the Constitution merely prescribing 
the test that the Senator elected should take the oath and not that 
he should in fact be a loyal citizen. Senator Sumner, combating 
this argument, said (Congressional Globe, p. 964) : 

But it is said — and I believe the Senator from Maine (Senator Fessenden) made the 
argument — that the evidence against the claimant, if sustained, might justify his 
expulsion; but it will not justify a refusal to admit him to take the oath. 

Senator Fessenden thereupon interrupted the speaker, saying: 

The Senator will state my position as I put it, and that was: "If the same language 
and declarations were provecl as coming from Mr. Stark while a Senator, I think they 
might justify his expulsion." 

Senator Carlile, speaking on this point, said: 

If that oath be violated by an act inconsistent therewith, if that oath is violated 
by that which is disloval, that which is treason, that which goes to infidelity, then it 
is in the power of the Senate under the other provisions of the Constitution to exclude 
him from his seat in the Senate. (Congressional Globe p. 968.) 

Senator Sherman, of Ohio said (Congressional Globe, p. 969), after 
objecting that it would be wholly improper to refuse to administer 
the oath: 

Now, then, is there no other way to deal with a disloyal person, except to add to the 
prescribed constitutional qualifications of a Senator, the vague, uncertain, undefined 
one of loyalty? It seems to me that the Constitution points out a plain, simple way — 
we caa expel a Member. * * * i feel bound to say upon the face of the papers 
as thev njw stand, unexplained and uncontradicted, that I would pronounce Mr. 
Stark disloyal. I can not read the testimony of these ex parte witnesses, giving their 
statsmants full credit, without the deepest conviction that he is disloyal. But, sir, 
we are bound to give him a trial, a fail' trial * * * let him take his seat, let him 
ta^s the oath * * * then allow him the usual facilities for his defense, and if he 
fails in making it, expel him. 

Senator Howard, of Michigan, said, supporting the amendment 
proposed by Senator Sumner: 

Mr. Stark at the time he made these declarations knew perfectly well that civil 
war was raging within the limits of the United States; that Jefferson Davis and his 
rebel Congress had raised a force of half a million men and that the United States of 
America had also raised a tremendous force for the purpose of putting down that 
rebellious military force. I ask you, sir, what sort of loyalty is that which at such a 
time and under such cu-cumstances stands up on the pulolic streets and declares that 
it is in favor of a southern confederacy; that it is ready to go south and fight for the 
South? I can not consent to permit such a man as this to take a seat in this body. 
While I see my own neighbors and friends and countrymen hurrying away to the field 
of strife for the purpose of upholding forever this glorious Constitution of ours, and while 
I see the mother taking leave of her only son and bidding him Godspeed with his 
Bible in his packet tj fig'it the battles of constitutional liberty and to uphold the old 
and time-honored flag; when I see the entu-e loyal population of the United States 
rushing with unexpected alacrity to the field of slaughter and facing death, even at 
the cannon's mouth in defense of this instrument, I will never cover mvself as a 
United Stites Senator with the shame and dishonor of suffering a traitor to take his 
seat by the side of me in this Senate, so help me God. (Congressional Globe, p. 991.) 

The amendment proposed by 'Senator Sumner was, however, 
rejected (Congressional Globe, p. 993). A further amendment was 
thereupon proposed that Mr. Stark be permitted to take the oath of 



SPEECH OF SENATOR ROBERT M. LA EOLLETTE. 59 

office "without prejudice to any further proceedings in this case." 
This amendment was adopted, and Mr. Stark was sworn as a Senator 
(Congressional Globe, p. 994). Senator Stark shortly thereafter 
moved that all the papers in the case be referred back to the Judiciary 
Committee (Congressional Globe, p. 1011). Objection was made 
that the Senator only held under an appointment from the governor; 
that the legislature of the State would meet in September; and that 
there was no good to come from further troubling the Senate with it 
(Congressional Globe, p. 1012). The papers in the case were never- 
theless referred to a special committee of the Senate (Congressional 
Globe, p. 1266), which committee, on April 22, 1862, reported that 
the Senator was disloyal (Congressional Globe, p. 1983). On May 
7 Senator Sumner moved the expulsion of Senator Stark upon the 
ground that he had been found by the special committee to be dis- 
loyal, but the matter was never brought to a vote, due, no doubt, 
to the fact that Mr. Stark's term was about to expire. At the coming 
election a new Senator was elected to fill the seat of Senator Baker, 
and Senator Stark was not returned to the Senate. 

On December 12, 1861, a resolution was introduced in the Senate 
for the expulsion of Senator Johnson, of Missoiu-i. The resolution 
recited that "by his sympathy with and participation in the rebellion 
against the Government of the United States" he "has been guilty 
of conduct incompatible with his duty and station as a Senator." 
The statement was made by the Senator introducing the resolution 
that it was a matter of public notoriety that Senator Johnson was in 
sympathy and in direct complicity with the secessionists of his own 
and other Southern States, and that he had been informed that the 
Senator was at that time in commission in the rebel army. As 
further evidence of his sympathy and cooperation with the rebellion, 
an extract from the St. Louis News, containing a speech made by 
the Senator, was read as follows : 

(From the St. Louis Evening News, May 24.) 
SECESSION SPEECH OP JUDGE JOHNSON — FEELING IN THE SOUTHWEST. 

Stockton, Mo., May 1, 1861. 

Judge Johnson spoke at this place yesterday. He said the honor and safety of 
Missouri demanded her speedy union with the Southern Confederacy. She would 
never degrade herself by tolerating an "armed neutrality." But for the influence of 
States that hung out blue lights for the enemy in the Revolution, Maryland would 
never aid in the subjugation of her sister slave States. Gov. Hicks, who is a quasi 
friend of Lincoln, would force Maryland into a fratricidal war with her friends. In 
view of the corruption that pervades every department of the Federal Government, 
and the fact that it is controlled by inveterate enemies of southern institutions, he 
hoped that no citizen of Cedar County was so degraded, so lost to honor and everything 
that was noble, as to cast his vote against an ordinance of secession. Not to be a 
secessionist is to be a disgraceful advocate of negro equality; and if a man was present 
who entertained such a principle, he wanted him to hold his head up that his ambro- 
type might be taken and sent throughout the land with the inscription: "A man with 
ia white skin, but has a nigger's heart." The citizens of Cedar had always sustained 
him (?) and had aided in placing him in the responsible position of United States 
Senator, the next highest office in the gift of the American people; and this mark of 
respect induced him to believe that they would continue to sustain him. 

"Fellow citizens, rally to the rescue of your adopted State from black Republican- 
ism. Lay your hands on your hearts and vote for an ordinance of secession. I know 
you are not in favor of regarding the woolly-headed, thick-lipped, ivory-toothed, 
black 'nigger' as your equal. Do not take the position of 'Policy' Orr. No, never. 
The gentleman by my side [alluding, I suppose, to Col. Crawford, who preceded hhn 



60 SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 

with a strong secession speech] told me he was glad a good Democratic vote killed his 
when he voted for Orr." If a man was present who voted for Orr, he invoked God to 
pardon the dreadful crime. Gov. Jackson had elicited the admiration of every patriot 
by his patriotic conduct in refusing to respond to the requisition of Lincoln. He 
favored the passage, by the legislature, of an ordinance of secession and submitting 
it to the people for ratification. 

His speech was enthusiastically received by secessionists, but by the Union men 
it was received with indignation. Mr. Johnson observing this, observed that he did 
not intend his language as personal. He would wound the feeling of no man. He 
considered every man a friend of the South, and willing to fight for her until, by 
words or actions, he expressed himself otherwise. 

After debate, the resolution was referred to the Committee on 
the Judiciary, 

On January 10, 1862, this committee made the following report: 

The Committee on the Judiciary, to whom was referred a resolution for the expulsion 
from the Senate of Waldo P. Johnson, a Senator from the State of Missouri, submit 
the following report : 

Previous to his election to the Senate, Mr. Johnson was known in Missouri as 
entertaining secession proclivities and to sympathize and cooperate with the promi- 
nent citizens of that State who are now in open rebellion against the Government, 
He was elected to the Senate by a legislature which has since sought to array the State 
against the Union. Since his election he is reported to have made a speech evincing 
a spirit hostile to the Government, which speech was extensively published in the 
State of Missouri without public contradiction from him. He has not appeared in 
his seat in the Senate since the session began; and, though the resolution for his 
expulsion was proposed in the Senate on the 10th day of December, and referred to 
this committee on the 12th day of December, 1861, and has been extensively pub- 
lished in Missouri and other parts of the Union, the said Johnson has wholly filled 
to furnish any reason for his absence or explanation of the charges of disloyalty urged 
against him. 

The fi^ilure of said Johnson for so long a period to appear in his place to discharge 
the high duties incumbent upon him for the preservation of the Republic in this 
time of rebellion against its authority, and his silence under the imputations upon 
his loyalty, which, from their publicity, could not have escaped his notice if within 
a loyal portion of the Union, of themselves furnish strong presumptive grounds against 
his fidelity to the Government. 

His whereabouts at this time the committee have been unable, with actual cer- 
tainty, to ascertain. They are satisfied that, had he been so disposed, there was 
nothing to prevent his attendance on the Senate at its commencement; and when 
last heard from, he was reported to have gone voluntarily within the lines of rebels 
in arms ag inst the Government. 

Under these circumstances, the committee are of the opinion that he ought to be 
expelled from the body, and they accordingly report the resolution back to tlae Senate 
with a recommendation that it do pass. 

The resolution for expulsion was unanimously adopted. 
On December 18, 1861, Senator Simmer offered a resolution for the 
expulsion of Senator Polk, of Missouri, and at the same time said: 

_ Now, I wish to have a letter that has been sent to me more than once — several 
times — by citizens of St. Louis, which appears in the papers there, read. 

The Secretary read as follows: 

"Senator Polk. — The pubhc have been under the impression for some time that 
Trusten Polk, one of the Senators from this State, was at Washington; not in the per- 
formance of Ills duties, but still there. The telegraph so stated without any reser- 
vation. But we infer, from a dispatch to the New York Times of the 12th, that such 
was not the fact. That dispatch said : 

" 'Hon. Trusten Polk, of Missouri, is expected daily in Washington to resume his 
seat in the United States Senate. He will be confronted by the following letter, 
written by him to one P. S. Wilkes, just before the battle of Wilsons Creek. Wilkes 
was editing a secession paper in southwest Missouri. Nothing else will be needed to 
secure Polk's expulsion as a traitor: 

"'"Dear Sir: Above I send my check to you for the Equal Rights Gazette. Itisall 
I can do and I could not do even that much until now. You have heard of the diffi- 
culty that the Bulletin has fallen into. I have had to ante up there at the rate of 
-$200. I hope the friends there have made arrangements which mil insure the per- 



SPEECH OF SENATOR EGBERT M. LA FOLLETTE. 61 

manence of the paper. It has been and is doing good service. I have made a speech 
yesterday on the state of affairs, southern rights, and the position of Missouri, present 
and future, which I will send you as soon as pubUshed in pamphlet, for distrilsution. 
In the meantime I will send it in sUps, and if the Gazette can stand the draft on its 
columns and you approve of it, and think it will do good in forming correct public 
sentiments in southwest Missouri, please have it published. Dissolution is now a 
fact; not only a fact accompHshed, but thrice repeated. Everytliing here looks like 
inevitable and final dissolution. Will Missouri hesitate a moment to go with her 
southern sisters? I hope not. Please let me hear from you. I would be glad to 
keep posted as to the condition of things in southwest Missouri. I like Gov. Jackson's 
position. It looks Uke adherence to the Jackson resolutions. 
" '"I am, truly, your friend, 

"•"Trusten Polk. 
" ' "P. S. Wilkes, Esq., Springfield, Mo." ' 

"Within a day or two it has been given out that Gov. Polk, instead of making his 
way to Washington, as was supposed, took a decided southern direction; that guides 
were employed to take him in the direction of New Madrid, and that by this time 
he is in the Southern Confederacy. It is not at all imlikely." (The Congressional 
Globe, p. 126.) 

The matter was referred to the Committee on the Judiciary which, 
committee, on January 9, 1862, reported in favor of the adoption of 
the resolution, (The Congressional Globe, p. 239.) The report read 
as follows: 

The Committee on the Judiciary, to whom was referred the resolution of the Senate 
for the expulsion of Trusten Polk, a Senator from the State of Missouri, report: 

"That it appears, to the satisfaction of the committee, that Trusten Polk recently, 
and until the commencement of the present rebellion, in a letter transmitting pecu- 
niary means to aid in the publication of a secession newspaper in southwestern Mis- 
souri, among other disloyal and treasonable expressions, used the following: 

"Dissolution is now a fact; not only a fact accomplished but thiice repeated. 
Everything here looks like inevitable and final dissolution. Will Missouri hesitate a 
moment to go with her southern sisters? I hope not. Please let me hear from you. 
I would be glad to keep posted as to the condition of things in southwest Missouri. 
I like Gov. Jackson's position. It looks like adherence to the Jackson resolutions." 

" That a copy of this letter was published in full in The Congressional Globe on the 
19th of December last, the day after the resolution of expulsion, in this case, was 
introduced in the Senate, and has, also, both before and since that time, been pub- 
lished and referred to in several other newspapers in Missouri and elsewhere and 
widely circulated throughout the country, which publication could hardly have 
failed to come to the notice of Senator Polk; and neither he, nor any ether person in 
his behalf, has appeared before the committee to deny the authenticity of the letter 
referred to, or attempted in any other way to deny or explain it, so far as the com- 
mittee are aware — a course of conduct deemed to be wholly incompatible with the 
idea of his innocence, since an innocent man, in his position, according to the first 
impulses of a true and loyal heart, would not have suffered a moment to elapse without 
flying to his place to deny, if false, so grave and foul a charge. 

"That besides this he has not only failed to appear in his seat during the whole time 
of the continuance of the present session, now a period of six weeks, to perform his 
duty to his State and to the Union, on an occasion of the greatest possible urgency, 
when the votes as well as counsel of every true and loyal Senator were eminently 
needed in providing for the public welfare and putting down a fierce rebellion threat- 
ening the very existence of the Union, but on the contrary, as the committee are 
fully satisfied on information derived from reliable, official, and other sources in 
Missouri, has left his home in St. Louis and gone clandestinely within the lines of the 
enemy now in open, armed rebellion against the United States, whose Constitution 
he, as Senator, has solemnly sworn to support. 

" The committee, under this state of facts, are of opinion that justice to the Senate to 
rid its roll of his name, as well as the Chamber of his presence; justice to the State of 
Missouri, whose high commission he has dishonored; and justice to the Union, which 
He has sought to betray, all require that he should no longer continue a member of 
this body. 

" They therefore respectfully report the resolution for the expulsion of Trusten Polk, 
the Senator from Missouri, back to the Senate, with the unanimous recommendation 
that the same do pass." 

The resolution was adopted by unanimous vote. 



62 SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 

In the House of Representatives two instances occurred in 1864, 
which resulted in motions to expel the Members from the House. 

On April 12, 1864, a resolution was offered by Speaker Colfax, 
who had left the chair for that purpose, as foUows: 

Whereas on the 8th of April, 1864, when the House of Representatives was in Com- 
mittee of the Whole on the state of the Union, Alexander Long, a Representative 
from the second district of Ohio, declared himself in favor of recognizing the inde- 
pendence and nationality of the so-called Confederacy now in arms against the Union; 
and whereas the so-called Confederacy, thus sought to be recognized and established 
on the ruins of a dissolved or destroyed Union, has as its chief officers, civil and mili- 
tary, those who have added perjury to their treason, and who seek to obtain success 
for their parricidal effort by the killing of the loyal soldiers of the Nation who are 
seeking to save it from destruction; and whereas the oath required of all Members, 
and taken by the said Alexander Long on the first day of the present Congi-ess, de- 
clares "that I have voluntarily given no aid, countenance, counsel, or encourag- 
ment to persons engaged in armed hostility to the United States," thereby declaring 
that such conduct is regarded as inconsistent with membership in the Congress of 
the United States: Therefore 

Resolved, That Alexander Long, a Representative from the second district of Ohio, 
having on the 8th of April, 1864, declared himself in favor of recognizing the inde- 
pendence and nationality of the so-called Confederacy now in arms against the Union, 
and thereby "given aid, countenance, and encoiu'agement to persons engaged in 
armed hostility to the United States," is hereby expelled. 

In support of this resolution he said: 

I believe in the fi'eedom of speech. I have not heard anything on this floor dm-ing 
this Congress that would have prompted me to offer this resolution except the remarks 
made yesterday by the gentleman from Ohio [Mr. Long]. He declared distinctly, 
in so many words, that he was in favor of the recognition of the so-called Confederacy, 
aid recognition is the recognition of its independence and its nationality as one 
a nong the nations of the earth. The flag of this Confederacy was thus boldly unfurled 
here by a gentleman who had taken the oath at the opening of Congress — and I have 
no doubt truthfully — that up to that time he had not given any aid, countenance, or 
encouragement to those who are engaged in armed hostility against the United States. 
Believing that that oath shows that those who do thus give aid and countenance 
and encouragement to those engaged in armed hostility against the United States 
are not worthy of membership here in a Congress of the United States, I felt it my duty 
at least to ask the House of Representatives to pass their judgment upon it. * * * 

Now, sir, if by the quiet and tacit assent of this House as a House of Representatives 
this sentiment is to go unquestioned by the Representatives of the United States of 
America here assembled, then I say you should stop shooting your deserters from the 
Army, for they have not turned their backs upon the obligation which they have 
assumed any more influentially by their leaving the flag which they had bound 
themselves to sustain than has a gentleman who will rise in his place in Congress and 
state that he is in favor of the men who seek the destruction of this land and the 
dissolution of the Union by recognizing them as one of the nations of the earth. 
N ly , more. You should call no more soldiers into the field to endeavor by the peril 
of t^eir lives to save this country, because it is a solemn mockery to do if from this 
H ill s'lall go forth words of encoiuagement to strengthen those arrayed against them 
in an unholy and parricidal work * * *. 

Mr. Speaker, we have seen since this rebellion opened the other branch of the 
Federal Congress, at the opposite end of the Capitol, expelling a Senator from my 
own State. What for? For sending a letter of introduction by a gentleman to the 
rebel chief who presides at Richmond. For that letter of introduction, thus giving 
aid and comfort to those in armed hostility to the United States, the Senate of the 
United States expelled him by a two-thirds vote. I have nothing to say in regard 
to the politics of my own State, but I have this to say, that a legislatiue sat after- 
wards in my State, of the same political views with the expelled Senator, and they 
had the power to elect two United States Senators, one for the long term and another 
for a short term, A majority of the legislature, sh, recorded their votes of approval 
of the action of the Senate by refusing to send — although they had the power -that 
Senator back to his seat in the United States Senate. * * * 

Mr. Speaker. I have but a word more to say, when I will leave the floor to the gen- 
tleman from Ohio (Mr. Cox) who seeks it. If this bold and frank avowal, for bold 
and frank it was, by a Member of Congress representing a free district in a loyal State, 
if this is to go unrebuked by this House, I ask you how you are to close these doors 



SPEECH OF SENATOR EOBEET M, LA FOLLETTE. 63 

against those who are now sitting at Richmond in the Confederate Congress, those 
who have not been in arms against the United States but have been sitting in that 
Congress giving aid and comfort to the arms of the rebellion against the United States? 
Their hands are stained with no blood, perhaps; they could come here with no blood, 
as soldiers, upon their skii'ts, but they may seek to come here, if this is to be the law 
of this Congress, fresh from the conclave of this Confederate Congress, saying to us, 
"We have done no more at Richmond than has been done upon this floor by the 
Member from the second district of Ohio in your presence, unrebuked upon the floor 
by Congress." (The Congressional Globe, pp. 1505-1506.) 

The Honorable James A, Garfield, then a Representative from 
Ohio, supporting the resolution, said: 

But now I turn to the resolution before the House. It is the expulsion of a Member 
from his seat here for words sjDoken in debate. And I grant you at the first view of 
the case the right of free speech would seem to be decisive in his favor, and against 
the resolution. The right to say in debate what is in his heart, would, without any 
counterbalancing reason, _be supreme, and sufficient to acquit him, and to reject this 
resolution. 

But, Mr. Speaker, the question of right and of duty in human affairs is a relative 
one. What might have been said with propriety and with loyalty three years ago 
can not be said with proprety and loyalty to-day. * * * 

When this struggle was opening, men might well doubt, as they did, what line of 
policy we should adopt and follow, and express those doubts, but when at last the 
Nation had settled its policy, decided upon war, and entered the field in pursuance 
of its plan, all the moralities and legalities of free speech were strikingly modified by 
that decision. 

I may justly vote against a declaration of war though all my compeers oppose me. 
But when war is once declared, the enemies of my country are my enemies, intercourse 
with them is illegal, to aid and abet them is treason, even though I was opposed to 
the war and its cause. This is the law of nations and the law of war. 

This Nation has been solemnly declared in a state of war, a class of citizens have 
been declared its enemies, and for three years we have proceeded upon that declara- 
tion. We have legislated and fought on that condition, and the utterance of yesterday 
is a very different thing from what the same sentiment would have been three years 
ago. This House has committed itself in many ways, by votes aln:ost unanimous, 
to the work of putting down the rebellion. We are not only a Nation with an Army in 
the field, but a Nation fighting. Every citizen, in whatever capacity he may at present 
be serving, is in some sense a soldier. 

Suppose we were in fact soldiers in the presence of the enemy; suppose his lines of 
bayonets and his hostile banners were in sight; and suppose in the very moment when 
our plans of battle were matured, and the movement about to begin, some one of our 
number should inform the enemy that there was division in the camp, and we could 
hot conquer; suppose that one should himself throw down his arms, refuse to fight, 
and exhort his fellow soldiers to follow his example. By the laws of war, as old as 
Sesostris, that man would be shot without trial. 

Now, sir, although we are not in the field as enlisted soldiers, yet we are as a Nation, 
and especially as the Congress of the Nation in the field and in the presence of the 
enemy. The campaign is about opening; and we are only waiting for the next fash 
across the wires to tell us where the signal of battle will sound. The very silence of 
the telegrams this morning indicates that the work may have begun to-day. And 
now, at such a moment, there rises in our camp a man who, having recorded his oath 
that he has never given aid and comfort to the rebellion — which oath, though retro- 
spective in terms, yet in its spirit and meaning is prosj^ective — that man" rises in 
his place and throws up the white flag in token of surrender; that man rises in his place 
and refuses to fight and exhorts others to follow his example; that man rises in his place 
and declares against the possibility or the policy or the justice of prosecuting the war 
to a successful termination. We are actually in the field; the justice of law and judg- 
ment of mankind would order him shot. Dare we do less than to expel him from this 
place? 

He has said no less than Jefferson Davis would say were he here to-day; there is 
nothiiig that should be added to his speech to make Davis's opinion perfect and com- 
plete in its expression, except that Davis fears that the rebellion will fail, my col- 
league does not. If I would retain him in his seat, I would vote to admit Davis to a 
seat beside him. If there be anything in the whole scope of human action that can 
aid, abet, and give comfort and encouragement to the enemy, the speech of my 
colleague is that thing. 



64 SPEECH OF SEl^TATOR ROBEET M. LA FOLLETTE. 

What hope have the rebels? They know that our armies are superior to theii's-, 
they know that we have gained steadily upon them; they know that we have pushed 
them b3yond the great mountain wall; they know that we have crowded them back 
from the great river, and cut their territoiy in twain; they know that oui* Navy 
encircles and blockades their coast; they know that the campaign now opening must 
be decisive unless — unless what? Unless their one last hope shall be realized that 
there shall be division in our councils and that enemies will arise along our line to 
break our strength and force us to give up the conquest. Their emissaries are at work 
through the Knights of the Golden Circle. The riots in New York were led by rebel 
emissaries from the South, assisted by the rebel sympathizers who live among us. 
They are at work in Illinois where they collected and secreted arms with which to 
shoot down soldiers in the streets they are at work in Indiana, where then- footsteps 
are marked with the blood of citizens. They are at work in my own State, both in 
convention and in bloody riots. * * * 

If we are resolved to put down the rebellion we must strike it where its vitality 
and power of resistance reside. And first of all we must strike it in this Chamber 
where yesterday, for the first time since the seats of the southern Members were 
vacated, open and avowed treason was uttered, not in the heat of debate, but written, 
conned over, committed to memory, and pronounced calmly and deliberately. 

During the debate on tliis resolution, Representative Harris spoke 
in opposition thereto, and among other things said: 

The South asked you to let her go in peace. But no, you said you would bring 
them into subjugation. That is not done yet, and God Almighty grant that it never 
may be. I hope that you will never subjugate the South. If she is to be ever in the 
Union I hope it will be with her own consent ; and I hope that that consent will be 
obtained by some other mode than by the sword. "If this be treason, make the 
most of it. " I am as good a Union man as you are, but we differ as to the best means 
of presei'\dng the Union. 

He was immediately ruled out of order and later in the day a 
resolution for his expulsion was presented to the House. (Con- 
gressional Globe, p. 1518). This was lost by a vote of 81 in favor of 
expulsion to 58 in opposition, a two-thirds vote being required. 
Thereupon a resolution was offered— " That Benjamin G. Harris, a 
Representative from the fifth district of the State of Maryland, 
having spoken words this day in debate manifestly tending and 
designed to encourage the existing rebelUon and the enemies of this 
Union, is declared to be an unworthy Member of this House and is 
hereby severely censured." This resolution was adopted by a vote 
of 93 to 18. (The Congressional Globe, pp. 1518, 1519.) 

When the debate was resumed to expel Representative Long, 
Representative Broomall offered an amendment to the pending reso- 
lution reading as follows: 

Whereas Alexander Long, a Representative from the second district of Ohio, by 
his open declarations in the National Capitol and publications in the city of New York, 
has shown himself to be in favor of a recognition of the so-called Confederacy now 
trying to establish itself upon the ruins of our country, thereby giving aid and comfort 
to the enemy in that destructive purpose— aid to avowed traitors in creating an illegal 
government within our borders, comfort to them by assurances of their success and 
affirmations of the justice of their cause; and whereas such conduct is at the same 
time evidence of disloyalty and inconsistent with his oath of office and his duty as a 
Member of this body: Therefore 

Resolved, That the said Alexander Long, a Representative from the second district 
of Ohio, be, and he is hereby, declared to be an unworthy Member of the House of 
Representatives . 

Resolved, That the Speaker shall read these resolutions to the said Alexander Long 
during the session of the House. 

Speaker Colfax accepted the amendment (the Congressional 
Globe, p. 1625), which was adopted, except the final paragraph 
thereof, which was withdrawn, by a vote of 80 to 69 (the Congres- 
sional Globe, p. 1634). 



SPEECH OF SENATOR BOBERT M. LA FOLLETTE. 65 

A motion was also made at one time to expel Senator Garrett 
Davis, of Kentucky, for saying, during a speech in the Senate: 

The people of the North ought to rebel against their war leaders and take this great 
matter into their own hands. 

He, however, immediately explained that he did not intend to 
incite any insurrection, and the matter was permitted to drop. 

Judge West H. Humphreys, judge of the district court for the 
several districts of Tennessee, was impeached during the war. One 
of the articles of the impeachment charges filed against him was 
as follows: 

That regardless of his duties as a citizen of the United States and unmindful of the 
duties of his said office and in Adolation of the sacred obligations of his official oath 
to administer justice without respect to persons and faithfully and impartially dis- 
charge all the duties incumbent on him as judge of tlie district coiut of the United 
States for the several districts of Tennessee, agi-eeably to the Constitution and laws 
of the United States, the said West H. Humphreys, on the 29th day of December, 
1860, in the city of Nashville, in said State, the said West H. Humphreys being then 
a citizen of the United States and owing allegiance thereto, and then and there being 
a judge of the district court of the United States for the several districts of said State, 
at a public meeting on the day and year last aforesaid, held in said city of Nashville, 
in the hearing of divers persons then and there present, did endeavor by public speech 
to incite a revolt and rebellion within said city against the Constitution and Govern- 
ment of the United States, and did then and there publicly declare that it was the 
right, of the people of said State by the articles of secession to absolve themselves from 
all allegiance to the Government of the United States, the Constitution and laws 
thereof. 

He was found guilty on this article by the unanimous vote of the 
Senate in 1862 and removed from his judicial office. (Cong. Globe, 
2d sess. 37th Cong., p. 2949.) 

But it is said in defense of the right of a public official to make 
speeches of the character which have been described ; that under the 
Constitution of the United States Congress is expressly forbidden 
to make any law abridging the freedom of speech or of the press or of 
the right of the people peaceabty to assemble and to petition the 
Government for a redress of grievances; and that under the constitu- 
tion of the State of i\Iinnesota, it is expressly provided that all 
persons may freely speak, write, and publish their sentiments on all 
subjects, being responsible for the abuse of such right. The same 
defense was made during the Civil War. The case of Yallandigham, 
a member of the House of Representatives, from Ohio, is in point. 
He took the stump to attack President Lincoln after the adjournment 
of the Thirty-seventh Congress, and on May 1, 1863, made what 
^Ir. Blaine describes as a peculiarly offensive mischievous and 
disloyal speech at Mount Vernon, Ohio, which was published through- 
out the State and widel}^ pubhshed elsewhere. "It was perfectly 
apparent," says Mr. Blaine (Twenty Years of Congress, p. 489) : 

That this bold agitator was to have many followers and imitators and that in the 
rapidly developing sentiment which he represented the administration would have 
as bitter an enemy in the rear as it was encountering in the front. 

Mr. Blaine then goes oh to describe how Gen. Burnside forthwith 
sent a detachment of soldiers who arrested Vallandingham, carried 
him to Cincninati, and tried him before a military commission. 
Mr. VaUandigham continually resisted and among other things 
claimed the constitutional right of trial b}^ jury. His plea was 
brushed aside, and he was forthwith convicted and sentenced to 
close confinement. Mr. Lincobi commuted the sentence to one 

51951—18 5 



66 SPEECH OF SEjSTATOR ROBERT M. LA FOLLETTE. 

sending Vallandigham beyond our military lines to his friends in 
the South. The Democratic Party throughout the United States 
took up the case, as Mr. Blaine says, with intemperate and ill tem- 
pered zeal. Gov. Seymour, of New York, in a public letter denounced 
it as ''an act which has brought dishonor upon our country.'' The 
governor's letter was publicly read at a large meeting of the Demo- 
cratic Party at Albany, at which a series of resolutions were adopted 
and forwarded to the President. Mr. Lincoln, on June 12, 1863, 
replied in a remarkable political letter, portions of which are par- 
ticularly pertinent on the present question. After referring to the 
fact that the South had been preparing for the conflict for more than 
30 years while the Government had taken no steps to resist them, 
he said: 

Their sympathizers pervaded all departments of the Government and nearly all 
communities of the people. From this material imder cover of "liberty of speech," 
•'liberty of the press," "habeas corpus," they hope to keep on foot amongst us 
most efficient corps of spies, informers, suppliers, aiders, and abettoi"s of their cause 
in a thousand ways. * * * It needed no very keen perception to discover this 
part of the enemy's program so soon as by open hostilities it was put in motion. Yet 
thoroughly imbued with a reverence for the guaranteed rights of individuals, I was 
slow to adopt the strong measures which by degrees I have been forced to regard as 
being within the exceptions of the Constitution and as indefensible to the public 
safety. Nothing is better known to history than that courts of justice are utterly 
incompetent in such cases. Ci\'il courts are'organized chiefly for trials of individuals, 
or at most a few individuals acting in concert, and this in quiet times, and on charges 
well defined in law . * * * Again, a jury too frequently has at least one member 
more ready to hangthe panel than to hang the traitor. And yet again, he who dissuades 
one man from volunteering or induces one soldier to desert weakens the Union cause 
as much as he who kills a Union soldier in battle. Yet, this dissuasion or inducement 
may be so conducted as to be no defined crime of which any civil court would take 
cognizance. 

Defending the right of military arrest, Mr. Lincoln continued : 

I conceiA-e that the class of arrests complained of can be constitutional only when 
in cases of rebellion or invasion the public safety may require them, and I insist that 
in such cases they are constitutional wherever the public safety does require them, 
as well in places to which they may prevent the rebellion extending as in those 
where it may be already prevailing; as well where they may restrain mischievous 
interference with the raising and supplying of armies to suppress the rebellion as 
where the rebellion may actually be; as well where they may restrain the enticing 
men out of the Army as where they would prevent mutiny in the Army; equally 
constitutional in all places where they will conduce to the public safety as against 
the dangers of rebellion or invasion. Take the particular case mentioned by the 
meeting. It is asserted in substance that Mr. Vallandingham was, by a military 
commander, seized and tried "for no other reason than words addressed to a public 
meeting in criticism of the course of the Administration and in condemnation of the 
military orders of the general." Now, if there l)e no mistake about this, if this asser- 
tion is the truth, if there was no other reason for this arrest, then I concede that the 
arrest was wrong. But the arrest, as I understood, was made for a very different 
reason. Mr. Vallandingham avows his hostility to the war on the part of the Union, 
and his arrest was made because he was laboring with some effect to prevent the 
raising of troops, to encourage desertion from the Army, and to leave the rebellion 
without an adequate military force to suppress it. He was not arrested because he 
was damaging the political prospects of the administration or the personal interests 
of the commanding general, but because he was damaging the Army, iipon the exist- 
ence and vigor of which the life of the Nation depends. He was warring upon the 
military, and this gave the military constitutional jurisdiction to lay hands upon 
him. 

Continuing, Mr. Lincoln said: 

Must I shoot a simple-minded soldier boy who deserts while I must not touch a 
hair of a wily agitator who induces him to desert? This is none the less injurious by 
getting a father and brother or friend into a public meeting and there working upon 



SPEECH OF SENATOR ROBERT M. LA FOI.LETTE. 67 

Ms feelings until he is persuaded to write the soldier Iwy that he is lighting in a l)ad 
cause, for a wicked administration of a contemptible Government too weak to arrest 
and punish him if he shall desert. I think that in such a case to silence the agitator 
and save the boy is not only constitutional, but withal a great mercy. 

In addition to the following, of course various Senators were 
expelled by reason of their connection with the Southern Confed- ^ 
eracy. Senators desiring to examine all of the precedents will find 
them under the title ''Punishment and expulsions of Members," 
chapter 42, Hinds" Precedents of the House of Representatives, 
volume 2. 

The following precedents include the case of the expulsion of John 
S nith, which contains a valuable report on the proper procedure: 

1263. William Blount, for a high misdemeanor inconsistent with his public trust 
and duty, was expelled from the Senate. 

The Senate ordered a Senator to attend in his place when a report relating to charges 
against him was to be presented. 

A committee having recommended the expulsion of a Senator, the Senate allowed 
him to be heard bv counsel at the bar of the Senate before action on the report. 

A Senator, impeached by the House of Representatives, was arrested by order of the 
Senate and released only on surety. 

Impeachment proceedings against a Senator were continued after his expulsion. 

The President of the United States transmitted to the Senate a letter impeaching 
the conduct of a Senator. 

On July 3, 1797, the Senate received a letter from the President of the United 
Statss, transmitting a letter purporting to ha^^e been written by "William Blount, a 
Senator of the United States, for the purpose of laying plans for the cooperation of 
certain Indians of the South with British agents xn an enterprise inimical to the 
interests of the United States and Spain. This letter was addressed to one Carey, an 
employee of the United States in the Indian country. 

The message and papers having been read, the letter was again read to Mr. Blou it, 
who was absent when it was read a first time. Being requested to declare whether 
he was the author of the letter or not, Mr. Blount observed that he wrote a letter to 
Carey, but was unable to say whether the copy was a correct one or nofwithout recur- 
rence to his papers. Therefore he desired a postponement until the next day, which 
was agreed to. 

On July 4 a letter was laid before the Senate from Mr. Bloimt, requesting further 
time. Thereupon the letter and message were referred to a select committee to 
consider and report what it was proper for the Senate to do thereon. 

On July 5, on report from this committee, it was — 

Ordered, That the Vice President notify WilKam Blount, a Senator from the State 
of Tennessee, by letter, to attend the Senate. 

On July 6, a further report being made by the committee, Mr. Blount read in his 
place a declaration, purporting that he should attend in his seat from time to time to 
answer any allegation that might be brought against him. 

Then it was — 

Resolved, That Mr. Blount be heard by counsel, not exceeding two, to-morrow 
morning at 11 o'clock. 

It was further — 

Ordered, That the Secretary furnish Mr. Blount with attested copies of such papers 
as he may point out respecting the subject this day reported on by the committee. 

On July 7, the subject being again before the Senate, Mr. Blount notified the Senate 
thatJaredlngersolland Alexander J. Dallas were the counsel he had employed agree- 
ably to the vote of the Senate. 

The President requested Mr. Blount to declare whether or not he was the author of 
the letter in question. Mr. Blount declined to answer. 

At this point a message was received from the House of Representatives presenting 
the impeachment of William Blount for high crimes and misdemeanors. Thereupon, 
in accordance with the request of the House, the said Williara Blount was sequestered 
from his seat and taken into custody. Subsequently he furnished sureties. 

On July 8 Mi-. Blount was heard" by his counsel," and then the question was taken 
on the report of the committee, which was as follows: 

That Mr. Blount, having declined an acknowledgment or denial of the letter imputed 
to him, and having failed to appear to give any satisfactory explanation respecting it, 



68 SPEECH OF SEN"ATOR ROBERT M. LA FOLLETTE. 

your committee sent for the original letter, which accompanies this report, and it is in 
following words. [Here follows the letter, the purport of which is given above.] 

Two Senators now present in the Senate have declared to the committee that they 
are well acquainted with the handwriting of Mr. Blount, and ha^se no dou1:)t that this 
letter was written by him. 

Yoiu committee have examined many letters from Mr. Blount to the Secretary of 
War, a number of which are herewith submitted, as well as a letter addressed by Mr. 
Blount to Mr. Cocke, his colleague in the Senate, and to this committee, respecting 
the business now under consideration, and find them all to be of the same handwriting 
with the letter in question. Mr. Blount has never denied the letter, but, on the other 
hand, when the copy transmitted to the Senate was read in his presence, on the 3d 
instant, he acknowledged in his place that he had wi'itten a letter to Carey, of which 
he had preserved a copy, but could not then decide whether the copy read was a true 
one. Your committee are therefore fully persuaded that the original letter now pro- 
duced was written and sent to Carey by Mr. Blount. They also find that this man 
Carey to whom it was addressed is, to the knowledge of Mr. Blount, in the pay and 
employment of the United States, as their intei-preter to the Cherokee Nation of In- 
dians, and as assistant in the public factory at Tellico Blockhouse. That Hawkins, 
who is so often mentioned in this letter as a person who must be brought into suspicion 
among the Creeks, and if possible diiven from his nation, is the Superintendent of 
Indian Affairs for the United States among the southern Indians. Dinsmore is agent 
for the United States for the Cherokee Nation, and Dyer one of the agents of the public 
factory at Tellico Blockhouse. 

The plan hinted at in this extraordinary letter, to be executed under the auspicies 
of the British, is so capable of different constructions and conjectures that your com- 
mittee at present forbear giving any decided opinion respecting it, except that to Mr. 
Blount's own mind it appeared to be inconsistent with the interests of the United 
States and of Spain, and he was therefore anxious to conceal it from both. But when 
they consider his attempts to seduce Carey from his duty as a faithful interpreter, 
and to employ him as an engine to alienate the affections and confidence of the In- 
dians from tlie public officers of the United States residing among them, the measures 
lie has proposed to excite a temper which must produce the recall or expulsion of our 
superintendent from the Creek Nation, his insidious advice tending to the advance- 
ment of liis own popularity and consequence, at the expense and hazard of the good 
opinion which the Indians entertain of this Government, and of the treaties subsisting 
between us arid them, your committee have no doubt that Mr. Blount's conduct has 
been inconsistent with his public duty, renders him unworthy of a further continu- 
ance of his present public trust in this body, and amounts to a liigh misdemeanor. 
They therefore unanimously recommend to the Senate an adoption of the following 
resolution : 

"Resolved, That William Blount, Esq., one of the Senators of the United States, 
having been guilty of a high misdemeancjr, entirely inconsistent with his public trust 
and duty as a Senator, be. and he hereby is, expelled from the Senate of the United 
States." 

The question being taken this report was agreed to, yeas 25, nays 1. 

The impeachment proceedings against Mr. Blount were proceeded with after the 
expulsion. 

1264. The Senate failed liy one Aote to expel John Smith, charged with partici- 
pation in a treasonable conspiracy. 

A discussion as to whether or not the principles of the proceilure of the coints should 
be followed in action for expulsion. 

The Senate allowed a Member threatened with expulsion to he heard Viy counsel, 
but did not grant his reqiiest for a specific statement of charges or compulsory process 
for witnesses. 

The Senate having allowed a Member to be heard by counsel, exercised the power 
of approving his selections. 

The written answer of a Senator to charges made against him was returned by the 
Senate because it contained irrelevant matter. 

The Senate ordered a Senator to attend in his place when a report relating to charges 
against him was to be presented . 

The Senate did not pursue inquiry as to the charge that Senator John Smith had 
sworn allegiance to a foreign power, the said oath haAdng been taken liefore his election 
as Senator. 

Nature and limitations of the constitutional power of expulsion discussed. 

Discussion of the decision of the Senate in the matter of charges against Humphrey 
Marshall, a Senator. 



SPEECH OF SENATOR ROBERT M. LA FOLLETTE. 69 

(Jn November 27, 1807. the Senate, after (lel)ate, adopted after amendment the 
following resolution proposed V)y Mr. Samuel Maclay, of Pennsylvania: 

"Resolved, That a committee be appointed to inquire whether it be (compatible 
with the honor and privileges of this House that John Smith, a Senator from the State 
of Ohio, against whom bills of indictment were found at the circuit court of Virginia, 
held at Richmond in August last, for treason and misdemeanor, should be permitted 
any longer to have a seat therein; and that the committee do inquire into all the facts 
regarding the conduct of Mr. Smith as an alleged associate of .Aaron Burr, and report 
the same to the Senate." 

The following-named Senators were appointed as the committee: John Quincy 
Adams, of Massachusetts: Samuel Maclay, of Pennsylvania; Jesse Franklin, of North 
Carolina; Samuel Smith, of Maryland: John Pope and P)uckner ThiTrston, of Kentucky; 
and Joseph Anderson, of Tennessee. 

On December 31, Mr. Adams announced that the committee were ready to report, 
and made the following motion, which was read and agreed to: 

"Ordered, That John Smith, a Senator from the State of Ohio, be notified by the Vice 
President to attend in his place . " 

The Vice President accordingly notified Mr. Smith in the words following: 

Sir: You are hereby required to attend the Senate in your place without delay. 
By order of the Senate. 

Geo. Clinton, 
President of the Senate. 
John Smith, Esq., 

Senator from the State of Oliio. 

And Mr. Smith attended. 

Thereupon Mr. Adams reported as follows: 

' ' Your committee are of opinion that the conspiracy of ^Varon Biu'r and his associates 
against the peace, union, and liberties of these States is of such a character, and that 
its existence is established by such a mass of concurring and mutually corroborative 
testimony that it is incompatible not only with the honor and privileges of this House, 
but Avith the deepest interests of this Nation, that any person engaged in it should 
be permitted to hold a seat in the Senate of the United States. 

"Whether the facts, of which the committee submit here"svith such evidence as, 
under the order of the Senate, they have been able to collect, are sufficient to sub- 
stantiate the participation of IVIr. Smith in that conspiracy, or not, will remain for the 
Senate to decide. 

' ' The committee submit also to the consideration of the Senate the correspondence 
between Mr. Smith and them, through their chairman, in the course of their meetings. 
The committee have never conceived themselves invested with authority to try Mr. 
Smith. Their charge was to report an opinion relating to the honor and privileges 
of the Senate and the facts relating to the conduct of Mr. Smith. Their opinion, 
indeed, can not be expressed in relation to the privilege of the Senate without relat- 
ing, at the same time, to Mr. Smith's right of holding a seat in this body; but, in that 
respect, the authority of the committee extends only to proposal, and not to clecision.' 
But as he manifested a great solicitude to be hearcl before them, they obtained per- 
mission from the Senate to admit his attendance, communicated to him the evidence 
in their possession, by which he was inculpated, furnished him, in writing, with the 
questions arising from it which appeared to them material, and received from him 
the information and explanations herewith submitted as part of the facts reported. 
B^it Mr. Smith has claimed as a right to be heard in his defense by coimsel. to have 
compulsory process for witnesses, and to be confronted with his accusers, as if the 
committee had been a circuit court of the United States. But it is before the Senate 
itself that your committee conceived it just and proper that jSIr. Smith's defense of 
himself should be heard. Nor have they conceived themselves bound in this inquiry 
by any other rules than those of natural justice and equity, due to a brother Sen.itor 
on the one part and to their country on the other. 

"Mr. Smith re] resents himself on this inquiry as solitary, friendless, and unskilled, 
contendiii<2- for riphts which he intimates arc denied him; and the defender of sena- 
torial ] aivileges which he seems a))prehensive will be refused him by Senators, liable so 
long as they hold their offices, to have his case made theii' own. The committee 
are not unaware that, in the viscissitudes of human events, no member of this body 
can be siu-e that his conduct will never be made a subject of incjuiry and decision 
before the assembly to which he belongs. They are aware that, in the course of pro- 
ceeding which the Senate may now sanction, its members are marking out a precedent 
which may hereafter apply to themselves. They are sensible that the principles 
u]:on which they ha^^ e acted oiight to haAc the same operation upon their own claims 



70 SPEECH OF SEISTATOE EOBEET M. LA FOLLETTE. 

to privilege as u})on those of Mr. Smith: the same relation to the rights of theii- con- 
stituents which they ha^e to those of the legislatm-e wliich he re}resents. They have 
deemed it their duty to advance in the jn-ogTess of their inquiry with peculiar care 
and deliberation. They have dealt out to Mr. Smith that measure, which, under the 
supposition of similar circumstances, they would be content to find imparted to them- 
selves; and they have no hesitation in declaring that, under such imputations, colored 
by such evidence, they should hold it a sacred obligation to themselves, to their 
fellow Senators, and to their country, to meet them by du-ect, unconditional acknowl- 
edgement or denial, without seeking a refuge from the broad face of day in the 
labyrinth of technical forms. 

"In examining the question whether these forms of judicial proceedings, or the 
rules of judicial evidence, ought to be apjilied to the exercise of that censorial authority 
which the Senate of the United States possesses over the conduct of its members, let 
us assume, as the test of theii- api)lication. either the dictates of unfettered reason, the 
letter and spirit of the Constitution, or ]>recedents, domestic or foreign, and your 
committee believe that the result will be the same: that the power of expelling a 
member must, in its nature, be discretionary, and in its exercise always more sum- 
mary than the tardy process of judicial tribunals. 

' ' The power of expelling a Meml:)er for misconduct results, on the principles of com- 
mon sense, from the interest of the Nation, that the high trust of legislation should be 
inA-ested in pure hands. When tJie trust is elective it is not to be presumed that the 
constituent body will commit the deposite to the keeping of worthless characters. 
But when a man, whom his fellow citizens have honored with their confidence, on the 
pledge of a spotless reputation, has degraded himself by the commission of infamous 
crimes, which become suddenly and unexpectedly revealed to the world, defective 
indeed woiUd he that institution which shoidd be impotent to discard from its bosom 
the contagion of such a member: which should ha^'e no remedy of amputation to 
apply until the poison had reached the heart. 

■'The question upon the trial of a criminal cause, before the courts of common law, 
is not between guilt and innocence, but between guilt and the possibility of innocence. 
If a count can possibly be raised, either by the ingenitity of the party or of his counsel, 
or bj' the operation of general rides in their unforeseen application to particidar 
cases, that doubt must be decisive for acquittal, and the verdict of not guilty, per- 
haps, in nine cases out of ten, means no more than that the guilt of the party has not 
been demonstrated in the precise, specific, and narrow forms prescribed by law. 
The humane spirit of the laws multiplies the barriers for the protection of innocence 
and freely admits that these barriers may be abused for the shelter of giult. It avows 
a strong partiality favorable to the person upon trial and acknowledges the preference 
that ten guilty should escape rather than that one innocent should stiffer. The 
interest of the public that a particular crime should be punished is but as one to ten 
compared with the interest of the party that innocence should be spared. Acquittal 
only restores the party to the common rights of every other citizen; it restores him to 
no public trust; it invests him with no public confidence; it substitutes the sentence 
of mercy for the doom of justice; and in the eyes of impartial reason, in the great 
majority of cases, must be considered rather as a pardon than a justification. 

' ' But when a member of a legislative body lies under the imputation of aggravated 
offenses, and the determination upon his cause can operate only to remove him from 
a station of extensive powers and important trust, this disproportion between the 
interest of the public and the interest of the individual disappears; if and dispro- 
portion exist, it is of an opposite kind. It is not better that ten traitors should be 
members of this Senate than that one innocent man should suffer expidsion. In 
either case, no doubt, the CAil would be great. But, in the former it would strike 
at the Adtals of the Nation; in the latter it might, though deeply to be lamented, only 
be the calamity of an individual. 

"By the letter of the Constitution the power of expelling a Member is given to each 
of the two Houses of Congress, without any limitation other than that which requires 
a concuiTence of two-thirds of the votes to give it effect. 

•■ The spirit of the Constitution is, perhaps, in no respect more remarkable than in the 
solicitude which it has manifested to secure the purity of the Legislature by that of the 
elements of its composition . A qualification of age is made necessary for the Members, 
to insure the maturity of their judgment; a qualification of long citizenship, to insure 
a community of interests and affections between them and their country; a qualifica- 
tion of residence, to provide a sjonpathy between every Member and the portion of 
the Union from which he is delegated and to guard, as far as regulation can guard, 
against every bias of personal interest, and every hazard of interfering duties, it has 
made every Member of Congress ineligible to office which he contributed to create, 
and every officer of the Union incapable of holding a seat in Congress. Yet, in the 



SPEECH OF SEISTATOE ROBERT M. LA FOLLETTE. 71 

midst of all this anxious pro\'idence of legislative virtue, it has not authorized the 
constituent body to recall in any case its representative. It has not subjected him 
to removal by impeachment; and when the darling of the people's choice has become 
their deadliest foe can it enter the imagination of the reasonable man that the sanctuary 
of their legislation must remain polluted with his presence until a court of common 
law, with its pace of snail, can ascertain whether his crime was committed on the 
right or on the left bank of the river; whether a puncture of difference can be found 
lietween the words of the charge and the words of the proof; whether the wdtnesses 
of his guilt should or should not be heard by his jiu'y; and whether he was punishable, 
because present at an overt act, or intangible pubhc justice, because he only contrived 
and prepared it? Is it conceivable that a traitor to that country which has loaded 
him with favors, guilty to the common understanding of all mankind, should be 
suffered to return imquestioned to that post of honor and confidence, where, in the 
zenith of Itis good fame, he has been placed by the esteem of his coiuitrymen, and in 
defiance of their wishes, in mockery of their fears, surrotinded by the pul^Lic indigna- 
tion, but inaccessible to its bolt, pursue the purposes of treason in The heart of the 
national councils? Must the assembled rulers of the land listen with calmness and 
indifference, session adter session, to the voice of notorious infamy, tmtil the sltiggard 
step of mtmicipal justice can overtake his enormities? Must they tamely see the lives 
and fortune of niilHons, the safety or present and future ages, depending tipon liis 
vote, recorded with theirs, merely because the abused benignity of general maxims 
may have remitted to him the forfeiture of his life. 

■'Such, in very supposable cases, would be the unavoidable consequences of a prin- 
ciple which should offer the crutches of judicial tribunals as an apology for crippling 
the congressional power of expulsion. Far different, in the opinion of your committee, 
is the spirit of our Constitution. They believe that the very purpose for which this 
power was given was to preserve legislation from the first approaches of infection; 
that it was made discretionary, because it could not exist under the procrastination 
of general rules; that its process must be summary, because it would be rendered 
nugatory by delay. 

" Passing from the constitutional view of the subject to that which is afforded by the 
authority of precedent, your committee finds that since the establishment of our 
National Legislature there has been but one example of expulsion from the Senate. 
In that case the Member implicated was called upon, in the first instance, to answer 
whether he was the author of a letter, the copy of which was produced, and the writ- 
ing of which was the cause of his expulsion. He was afterwards requested to declare 
whether he was the author of the letter itself, and declining in both cases to answer, 
the fact of his having written it was established by a comparison of his handwriting, 
and by the belief of persons who had seen him write, upon inspection of the letter. 
In all these points the committee perceive the admission of a species of evidence 
which in courts of criminal jurisdiction would be excluded, and in the resolution 
of expulsion the Senate declared the person inculpated guilty of a high misdemeanor, 
although no presentment or indictment had been fotmd against him and no prose- 
cution at law was ever commenced upon the case. 

"This event occurred in July, 1797. About 15 months before that time, upon an 
application from the Legislature of Kentucky requesting an investigation by the 
Senate of a charge against one of the Members from that State, of perjury, which had 
been made in certain newspaper ptiblications, but for which no prosecution had l^een 
commenced, the Senate did adopt, by a majority of 16 votes to 8, the report of a 
committee, purporting that the Senate had no jurisdiction to try the charge, and that 
the memorial of the Kentucky Legislature should he dismissed. There were, indeed, 
very sufficient reasons of a di^erent kind assigned in the same report for not pm-suing 
the investigation, in that particular case, anj' further. And your committee believe 
that in the reasoning of that report some principles were assumed and some inferences 
drawn which were altogether unnecessary for the determination of that case, which 
were adopted without a full consideration of all their consequences, and the inac- 
curacy of which were clearly proved by the departure from them in the instance 
which was so soon afterwards to take place. It was the first time that a question of 
expulsion had ever Ijeen agitated in (,'ongress since the adoption of the Constitution. 
And the subject, being thus entirely new, was considered perhaps too much with 
reference to the partictilar circumstances of the moment and not enough upon the 
numerous contingencies to which the general question might apply. Your committee 
state this opinion \vith some confidence, because of the IG Senators who, in March, 
1796, voted for the report dismissing the memorial of the Kentucky Legislature, 11 
on the subsequent occasion, in Julyl 1797, voted also for that report, which concluded 
with a resolution for the expulsion of Mr. Blouiit. The other five were no longer 
present in the Senate. Yet, if the principles advanced in the first report had been 



72 SPEECH or SEI^ATOR EOBEET M. LA POLLETTE. 

assumed as the ground of proceeding at the latter period, the Senate would have 
been as impotent of jurisdiction upon the offense of Mr. Blount as they had supposed 
themselves upon the allegation against Mr. Marshall. 

"Those parts of the fifth and sixth articles, amendatory to the Constitution, upon 
which the report in tire case of Mr. Marshall appears to rely for taking away the jmis- 
dictiou of the Senate, your committee suppose, can oidy be understood as referring to 
prosecutions at law. To suppose that they were intended as restrictions upon pow- 
ers expressly granted by the Constitution to the legislature, or either of its branches, 
would, in a manner, anniliilate the power of impeachment as well as that of expulsion. 
It would lead to the absurd conclusion that the authority given for the purpose of re- 
moving inicpiity from the seats of power should be denied its exercise in precisely those 
cases which most loudly call for its energies. It would present the singular spectacle 
of a legislature ^■ested witli powers of expelling its members, of impeaching, removing, 
and disqualifj-ing pul)lic officers for trivial transgressions beneath the cognizance of 
the law, yet forbidden to exert them against capital or infamous crimes. 

' ' Those two articles were in substance 'oorrowed from similar regulatioii s contained in 
that justly celebrated statute which for so many ages has been distinguished by the 
name of tlie Great Charter of England. Yet in that country, where they are recog- 
nized as the most solid foundations of the liberties of the nation, they have never 
lieen considered as interfering ■s\dth the power of expelling a meml^er, exercised at all 
times hj the House of Commor s: a power which there, however, rests only upon par- 
liamentary usage, and has never been bestowed, as in the Constitution of the United 
States, by any act of supreme legislation. From a number of precedents which have 
been consulted, it is fo;md that the exercise of this authority there has always been 
discretionary, and its process always far otherwise than compendious in the prosecu- 
tions before the judicial courts. So far, indeed, have they been from supposing a 
conviction at law necessary to precede a vote of expulsion that in one instance a 
resolution to demand a prosecution appears immediately after the adoption of a reso- 
lution to expel. In numerous cases the Member submits to examination, adduces e\d- 
dence in liis favor, and has evidence produced against hina, ■with or TOthout formal 
authentication: and the discretion of the House is not CA-en restricted by the necessary 
conciu'rence of more than a liare majority of the votes. 

"The pro^dsion in our Constitution which forlndsthe expulsion of a Member by an 
ordinary majority and requires for this act of rigorous and painful duty the assent of 
two-thirds, yoiu- committee consider as a wise and sufficient guard against the possible 
alnise of tliis le.gislative discretion . In times of heat and violent party spirit, the rights 
of the minority might not always be duly respected if a majority could expel their 
Meml)ers under no other control than that of their own discretion. The operation of 
this rule is of great eflicacy, l:)oth over the proceedings of the whole liody and over the 
conduct of CA'ery individual ilemlier. The times when the most Anolent struggles of 
contending parties occur — when the conflict of opposite passions is most prone to ex- 
cess — are precisely the times when the numbers are most equally divided. AMien the 
majority amounts to the proportion of two-thirds, the secmity in its own strength is of 
itself a guard against extraordinary stretches of ])0wer; when the minority dwindles 
to the proportions of one-third its consciousness of weakness dissuades from any at- 
tempts to encroach upon the rights of the majority, which might provoke retaliation. 
But if expulsion were admissible only as a sequel to the issue of a legal prosecution, or 
upon the same principles and forms of testimony which are established in the criminal 
com-ts, your committee can see no possil^le reason why it should be reiidered still more 
imbecile by tlie recjiusition of two-thirds to giAC it effect. 

" It is now the duty of your committee to apply the principles which they have here 
endeavored to settle and elucidate to the particular case upon which the Senate have 
dii'ected them to report. The bills of indictment found against Mr. Smith at the late 
session of the cu'cuit court of the United States at Richmond (copies of which are 
herewith submitted) are precisely similar to those found against Aaron BruT. From 
the Aolume of printed evidence communicated l)y the President of the United States 
to Congress, relating to the trial of Aaron Burr, it appears that a great part of the tes- 
timony which was essential to his couAnction. upon the indictment for treason, was 
withheld from the jury upon an opinion of the court that Aaron Burr, not ha\ing been 
present at the overt act of treason alleged in the indictment, no testimony relative to 
his conduct or declarations elsewhere, and subsequent to the transactions on Blen- 
nerhassett's Island, could be admitted. And in consequence of this suppression of 
evidence the tra-\-erse jury found a verdict ■"that Aaron Burr was not proved to be 
guilty, under that indictment, by any evidence submitted to them." It was also an 
opinion of the court that none of the transactions, of which e\ddence was given on the 
trial of Aaron Burr, did amount to an overt act of levying Avar. and. of course, that 
thev did not amount to treason. These (h^cisions. forming the basis of the issue upon 



SPEECH OF SENATOR ROBERT M. LA POLLBTTE. 73 

the trials of Burr, anticipated the event which must have awaited the trials of the bills 
against Mr. Smith, who, from the circumstances of his case, must have been entitled 
to the benefit of theh application: they were the sole inducements upon which the 
covmsel for the United States aliandoned the prosecution against him. 

" Your committee are not disposed now to question the cori'ectness of these decisions 
on a case of treason before a court of criminal jurisdiction. But whether the transac- 
tions proved against Aaron Burr did or did not amoimt, in technical language, to an 
overt act of levying war. your committee have not a scruple of doubt on their minds 
that, but for the ^dgilance and energy of the Government and of faithful citizens under 
its directions, in arresting their progress and in crushing his designs, they would in a 
very short lapse of time have terminated not only in a war, but in a war of the most 
horrible description, in a war at once foreign and domestic. As little hesitation have 
your committee in sajdng that, if the daylight of evidence, combining one vast com- 
plicated intention, with overt acts innumerable, be not excluded from the mind by 
the curtain of artificial rules, the simplest understanding can not but see what the 
subtlest understanding can not disguise — crimes before which ordinary treason 
whitens into virtue: crimes of which war is the mildest feature. The debauchment of 
our Army, the plunder and devastation of our own and foreign territories, the dissolu- 
tion of our national Union, and the root of interminable civil war, Avere but the 
means of individual aggrandizement, the steps to projected usurpation. If the in- 
genuity of a demon were tasked to weave into one composition all the great moral 
and political evils which would be inflicted upon the people of these States, it could 
produce nothing more than a texture of war, dismemberment, and despotism. 

' ' Of these designs, a grand jury, composed of characters as respectable as this Nation 
can boast, have, upon the solemnity of their oaths, charged John Smith with being 
an accomplice. The reasons upon which the trial of this charge has not been sub- 
mitted to the verdict of a jury have been shown by your committee, and are proved 
by the letter from the attorney of. the United States for the district of Virginia, here- 
with reported. And your committee are of the opinion that the dereliction of the 
prosecution vn these grounds can not, in the slightest degree, remove the imputation 
which the accusations of the grand jury have brought to the door of Mr. Smith. 

' ' Your committee will not permit themselves to comment upon the testimony which 
they submit herewith to the Senate, nor upon the answers which ilr. Smith has given 
as sufficient for his justification. Desirous as the committee have been that this 
justification might be complete, anxiously as they wished for an opportunity of 
declaring their belief of his innocence, they can neither control nor dissemble the 
operation of the eA-idence upon their minds: and, however painful to their feelings, 
they find themselves compelled by a sense of duty, paramount to every other consid- 
eration, to submit to the Senate, for their consideration, the following resolution: 

" 'Resolved. That John Smith, a Senator from the State of Ohio, by his participation 
in the conspiracy of Aaron Burr against the peace, union, and liberties of the people 
of the United States, has been guilty of conduct incompatible with his duty and sta- 
tion as a Senator of the United States. And that he be therefore, and hereby is, 
expelled from the Senate of the United States.'" 

Mr. Adams also submitted a further report, made in response to a supplemental 
direction of the Senate, in relation to an allegation that John Smith had taken the 
oath of allegiance to the King of Spain. But as inquiry had shovrn the oath to have 
been taken previously to the election of Mr. Smith, no further order was taken on this 
charge. 

^fr. Smith at this time submitted an answer, l^ut as a portion of this answer contained 
irrelevant charges against Judge Nimmo the answer was returned in order that those 
portions might be expunged. 

On January 4 the Pesident of the Senate communicated the revised answer of 
Mr. Smith in the form of a letter. This letter was read on the 7tli, and represented 
that all the evidence adduced by the committee, excepting two bills of indictment, 
were either taken ex parte or without allowing Mr. Smith sufficient time to interro- 
gate the witnesses. It asked for the aid of counsel, for time, and for the means of 
adducing proof in his defense. It admitted that there was no necessity for a legal 
conA'-iction previous to the expulsion of a Member from the Senate, but contended 
that proof of the facts charged must bo first established in a legal Avay, and that then 
the Senate could only exercise its legal right of expulsion. 

i\Ir. Smith thereupon arose and submitted his request in the form of the following 
motion: 

That John Smith be informed specifically of the charges against him; that he he 
alloAved to make a defense against such charges; and haA-e process to compel the 
attendance of Avitnesses and the priA"ilege of lieing heard by counsel. 



74 SPEECH or SENATOE BOBEBT M. LA FOLLETTE. 

Aiter debate on this request, the Senate unanimously agreed to the following 
resolution : 

"Resolved, That Mr. Smith be heard by counsel, not exceeding two, to show cause 
why the report of the committee should not be adopted." 

The other requests were not allowed, the debate showing the opinion on the 
part of Senators that they were not in accordance with the dignity of the Senate 
and the propriety of proceeding. 

On January 13 l\Ir. Smith infoinied the Senate that he had engaged Luther Martin 
and Francis S. Key as his counsel. A question being taken on agreeing to these as 
counsel, Mr. Key was accepted l)y the Senate and Mr. Martin was rejected. Subse- 
quently ^Ir. R. G. Harper was admitted as counsel. 

Mr. Smith then, by his counsel, offered an afiidaAdt setting forth the facts which 
he claimed he could prove in exculpation, and also submitted a reqiiest for an ex- 
tension of time in which to obtain testimony. 

Time was allowed and the case continued, with the presentation of testimony and 
affidavits, until April 5 and 6, when the case was argued before the Senate by counsel. 
Thereafter the case was debated at length until April 9, when the vote was taken on 
the resolution proposed by the committee. And there were — yeas 19, nays 10, not 
the required two-thirds, and the resolution was not agreed to. 

1269. For a letter implying friendship with the foes of the (ioveniment Jesse D. 
Bright was expelled I'l'om the Senate. 

The nature and metliod of exercise of the power of expulsion discussed by the Senate. 

A Senator was present during consideration of a resolution for his own expulsion 
and participated in the debate. 

On December 16, 1861, Mr. ^lorton S. Wilkinson, of ^Minnesota, presented the fol- 
lowing in the Senate: 

Whereas the Hon. Jesse D. Bright heretofore, on the 1st day of I\Iarch, 1861, wrote a 
letter, of which tlio following is a copy: 

Washington', March 1, 1S61 . 
My Deaii Sir: Allow me to introduce to your acquaintance, my friend, Thomas 
B. lincoln, of Texas. He visits your capital mainly to dispose oi" what he regards 
a great improA-ement in firearms. I commend him to your faA'orable consideration 
as a gentleman of the first respectability, and reliable in every respect. 
\'ery truly, yours, 

Je.'^se 1). Bhioht. 
To His Excellency Jefferson" Davis, 

President of the ConJ'ederatiort of Sia!es. 

And whereas we believe the said letter is evidence of disloyaltv to the United States, 
and is calculated to give aid and comfort to the public enemies: Therefore, 
Resolved, That the said Jesse D. Bright be expelled from his seat in the Senate of the 
United States. 

At the same time another letter of ^Ir. Bright, explanatory of his opposition to 

coercive measures by the (jovernment, and declaring his 'support of the Union, was 

presented, and. with the resolution, was referred to the ('omraittee on the Judiciary. 

On January 13, 1S()2, Mr. Edgai' Cowan, of Pennsvlvania, sulimitted the following 

report: 

The Committee on the Judiciary, tv) wlujin was referred a resolution to expel the 
Hon. Jesse B. Bright from his seat in the United States Senate, respectfullv report 
that thev are of opinion that the facts charged against 'Mr. Bright are not sufficient to 
warrant his expulsion from the Senate, and they therefore recommend that the reso- 
lution do not pass. 

The committee, however, were not unanimous. Mr. Lyman Trumbull, of Hlinois, 
chairman, stated in debate that the letter set iiu d to imply, not an expression of opinion 
but a distinct act of hostility to the Government in time of war. 

Speaking on January 21, Mr. Charles Sumner, of Massachusetts, cited the cases of 
Blount and Smith in support of his contention that in a case of expulsion the Senate 
was not go-serned by judicial ruhs, and was at liberty to exercise a discretion unknown 
to judicial bodi-^s. 

Speaking on January 25, Mr. Garrett Davis, of Kentucky, said: 
■■ Whene^'er a Member of this House forms opinions, and in his oHicial character and 
acts carries out those opinions, positiA-ely or negatively, in such a manner as to render 
liim an unfit and unsafe ^Member of the Senate, he becomes a proper subject of remoA^al 
from the body. * * * There is no common law, no statutory law, there is no par- 
liamentary law that binds the Senate to any particular definition of crime or offens;' 
in acting in this or any other case of lhr kind." 



SPEECH OF SENATOE ROBEET M. LA FOLLETTE. 75 

Mr. Davis, acting in harmony with these principles, proposed the expulsion fully 
as much because Mr. J3right opposed the conduct of the administration as for the writing 
of the letter. Those opposing expulsion, notably Mi-. Edgar Cowan, of Pennsylvania, 
urged that the issue should be confined strictly to the letter, and that it should be inter- 
preted in view of the state of affairs existing when it was written. i\Ir. Sumner had 
conceived that Jefferson Davis and his associates were public, open, unequivocal 
traitors at the time the letter was written, and that the letter was intended to aid the 
treason. Mr. Cowan conceived that it was a mere letter of introduction given without, 
treasonable intent. 

Mr. James A. Bayard, of Delaware, speaking on February 5, while admitting that 
by the terms of the Constitution the power of expulsion was absolute in two-thirds of the 
Members, held that it was none the less a judicial action, and the great leading prin- 
ciples of evidence could not be abandoned. Difference of opinion would not justify 
expulsion. In the case of Smith and Blount they were charged mth distinct and 
specific acts of criminal misconduct. They were also defended by counsel. In this 
case Mr. Bayard conceiA^ed that there was no treasonable intent or act. 

The debate on the report extended through January 20-31 and February 4 and 5. 
Mr. Bright had no counsel, but was present during the debate and participated in it 
freely. 

On March o the question was taken on agreeing to the resolution proposed l)y Mr. 
Wilkinson, and it was agreed to — yeas 32, nays 14. So Mr. Bright was expelled. 

The following was then agreed to: 

'^Ordered, That the Vice President be requested to transmit to the executive of the 
State of Indiana a copj' of the resolution expelling Jesse D. Bright from the Senate, 
attested by the Secretary of the Senate." 

1271. The Senate did not consider Lazarus W. Powell worthy of expulsion l:)ecau8e 
he had formerly counseled his State to be neutral between the Government and its 
enemies. 

On February 20, 1862, in the Senate, Mr. Morton S. Wilkinson, of Minnesota, pro- 
posed the following, which was referred to the Committee on the Judiciary: 

Whereas, I^azarus W. Powell, a Senator from the State of Kentucky, after 11 States 
had published their ordinances of secession by which to sever themselves frorn the 
Government of the United States, had formed a confederation and provisional 
government, and made war upon the United States, did, on the 20th day of June, last 
at the city of Henderson, in the State of Kentucky, attend a large Southern States 
rights convention, over which he was called to and did preside; and, on taking his 
seat as president thereof, made a speech, in which he stated the object of said con- 
vention, and then appointed a committee, which reported to said convention a 
long series of resolutions that were unanimously adopted by it. Among those reso- 
lutions are the following: 

■'2. That the war being now waged by the Federal Administration against the 
Southern States is in violation of the Constitution and laws, and has already been 
attended with such stupendous usurpations as to amaze the world and endanger 
every safeguard of constitutional liberty. 

* * * * * * * 

' ' That the recall of the invading armies and the recognition of the separate inde- 
pendence of the Confederate States is the true policy to restore peace and preserve 
the relations of fraternal love and amity between the States. 

***** -x- * 

"6. That we heartily approve the refusal of Governor Magoffin to fm-nish Ken- 
tucky troops to subjugate the South; and we cordially indorse his recent proclama- 
tion defining the position of Kentucky, in accordance with the sentiment of her 
people, and forbidding the invasion of Kentucky by Federal or Confederate troops. 

"7. That, although Kentucky has determined that her proper position at present 
is that of strict neutrality between the belligerent sections, yet, if either of them 
invade her soil against her will, she ought to resent and repel it by necessary force. " 

The pith of Gov. Magoffin's proclamation, which that convention so cordially 
approved, is embodied in this paragraph: "1 hereby notify and warn all other 
States, separate or united, especially the United and .Confederate States, that 1 
solemnly forbid any movement upon Kentucky soil, or occupation of any part or 
place therein, for any purpose whatever until authorized by invitation or per- 
mission of the legislative and executive authorities. I especially forbid all citizens 
of Kentucky, whether in the State guard or otherwise, from making any hostile 
demonstration against any of the aforesaid sovereignties; to be obedient to the 
orders of lawful authorities: to remain quietly and peaceahly at home when off of 



76 SPEECH OF SENATOR ROBERT M. LA POLLETTE. 

military duty, and refrain from all words and acts likely to proovoke a collision, 
and so otherwise to conduct themseh'es that the deplorable calamity of invasion 
may be averted: but, in the meantime, to make prompt and efficient preparation 
to assume the paramount and supreme law of self-defense and strictly of self-defense 
alone." 

The closing speech of this convention was made by Senator Powell, and the res- 
olutions passed by it and a summary statement of its proceedings were signed by 
him as its president. 

On the 10th of September last, whilst the Legislatui-e of Kentucky was in session 
in the town of Frankfort, and after her territory had been invaded at two distant 
points by the Confederate Armies, and whilst Humphrey Marshall was employed 
in organizing and drilling an armed body of rebels in the contiguous county of 
Owen, a large Southern States rights convention assembled and held its sessions in 
Frankfort for the apparent purpose of overawing the legislature, controUtDg its de- 
liberations, and deterring it from passing measures to support the Union and the 
Government of the United States. Lazarus W. Powell was a delegate to that con- 
vention from the county of Henderson, and was apointed on its committee of reso- 
lutions. Among other resolutions, the committee reported these: 

"Resolved, That every material interest of Kentucky, as well as the highest dic- 
tates of patriotism, demand that peace should be maintained within her borders, 
and this convention solemnly pledges the honor of its members to do all in their 
power to promote this end. 

"2. That it is the deliberate sense of this convention, and it is believed of an 
overwhelming majority of the people of Kentucky, that the best and perhaps the 
only mode of effecting this great object is by adhering strictly, rigidly, and impar- 
tially to her chosen and oft-declared position of neutrality during the existence of 
the deplorable war now raging between the sections, taking sides neither with the 
Government nor with the seceding States, and declaring her soil must 1 e preserved 
inviolate from the armed occupation of either. 

* * * * * <ir * 

"9. That we consider it incompatible with the neutrality avowed by Kentucky 
to vote money for the prosecution of the Civil War, or to tax the people of the State, 
or augment its debt for a piu-pose so unwise and for a cause so hopeless as the mili- 
tary subjugation of the Confederate States.'" 

This was a convention of most intense secessionists, and was attended by John C. 
Breckinridge and many of the leaders of that party from generally over the State. 
William Preston and R. W. Woolej', Esq., made speeches to it fraught with the 
rankest treason and denouncing the fiercest war against the United States. Its 
resolutions were unanimously adopted, and its business closed with the following 
one, offered by Sanator Powell; 

''Resolved. That Col. William Preston, George W. Johnson. Es().. Gen. Lucius 
Desha, Cajjt. Richard Hawes, and Thomas P. Porter, Esq., be. and they are hereby, 
appointed a committee of organization, in order to cany out the purposes of this 
convention, and full powers are conferred upon them for that object." 

Those men were thus commissioned in the cause of conspii-acy, treason, and 
rebellion. By the warrant given them, on the motion of Senator Powell, they went 
forth and organized or advised and assisted in the organization of armed bands 
of traitors and soon thereafter led them into the Confederate camps, where they are 
yet struggling to consummate the disruption of the Union and the overthrow of the 
C'onstitution and laws of the L'nited States. From the beginning of this great 
rebellion to the present time Senator Powell has neither done nor said anything 
in Congress or out of Congress to strengthen or sustain the United States in this 
struggle for national life. Wliilst the true and loyal men of his own State were 
engaged in an arduous and protracted struggle to fering her to perform her duty to 
the Nation and its government, he not only withheld from them all assistance and 
sympathy, but gave to the rebels the moral force of his disloyal position and opinions 
and all the aid and comfort which he could render them short of a commission of 
technical treason. His purposes, if not his acts, have been treasonable. Being an 
ex-governor of the State of Kentucky and one of her Senators in Congress, his 
example and counsel have doubtless been potential with her people and of mis- 
chievous tendency in other States. Under the false and delusive cry of neutrality 
and peace, and the absurd purpose to protect the soil of the State against invasion 
from the military force of the Ignited States, he has doubtless assisted to seduce 
hundreds and hundreds from loyalty and duty into rebellion and treason. 

He has not supported the Constitution of the United States, but he has sounded 
the charge to his recruits, and they have made the oA'ert attack upon it: ^Mierefore, 
be it 



SPEECH OP SENATOR ROBERT M. LA POLLETTE. 77 

Resolved, That the said Lazarus W. Powell be, and he is hereby, expelled from the 
Senate. 

March 7 there was reference to the subject in debate, and on March 12 Mr. Lyman 
Trumbull, of Illinois, chairman of the committee, reported back the resolution with 
the recommendation that it do not pass. On March 14, at the conclusion of the 
debate, Mr. Truml)ull gave the reasons for the report: 

I consider it due to the committee, whose organ I was in reporting adversely to the 
passage of this resolution, simply to state, not by way of argument or of provoking 
reply, the ground upon which the committee reported adversely to the passage of 
this resolution. It was not l:)ecause the committee approved the doctrine of neu- 
trality in Kentucky. In my judgment that was the most mischievous position and 
one wholly untenable, either in April or Jime or September; but it is known that 
the people of Kentucky very generally assumed that ground , and the Government of 
the United States, if they did not recognize the neutrality of Kentucky, we may at 
least say paid some respect to it. The resolutions that were adopted, in which they 
declared that the United States had no right to pass its troops over the soil of Ken- 
tucky, were, in my judgment, preposterous. It was downright opposition to the 
constituted authorities of the Government, wholly unjustifiable. I have no excuse 
for it. I think it is without excuse. But, sir, such was the position of the great 
body of the people of that State, and many persons now believe that it was owing to 
this position of neutrality which was then assumed that Kentucky has at last arrayed 
herself on the side of the Union. I do not think so, but good Union men doubtless 
did take that position. 

Well, sir, the time came when; notwithstanding Kentucky had assumed this false 
attitude, it was necessary that her people should take sides either with the Govern- 
ment or against those arrayed for its protection. Some men who got upon this neu- 
trality platform left it sooner than others; some in June, if you please; some earlier; 
some stood on it until September; but when the time came that Kentuckians had to 
meet this thing face to face, go with the Government or against it, fight for one or the 
other, then, sir, the traitors arrayed themselves and undertook to get up a provisional 
government in the State of Kentucky. Breckenridge and the traitors alluded to by 
the Senator on my right [Mr. Davis] went into the organization; they joined the rebels; 
the Senator from Kentucky, whose case is under consideration, came here — came to 
the Government of the United States to discharge his duties here. He does not agree 
with me in sentiment; his opinions are not my opinions; I do not agree with the views 
that he has often announced here; but he is entitled to his own opinions, and no man 
is to be expelled from this body because he disagrees with others in opinion. Since 
Kentucky assumed this position and took sides with the Union nothing has been shown 
to satisfy the committee, at least, that the Senator from Kentucky has had any comr 
munication or done anything to favor the cause of the rebellion. I think neutrality 
did favor it; but, sir, that is over now. 

On March 13 and 14 Mr. Garrett Davis, of Kentucky, urged the expulsion. He 
began by showing that the Legislature of Kentucky had requested Mr. Powell to re- 
sign and urged that he had ceased to represent the will of the loyal people of that 
State. He also charged that he was against coercing the seceding States and in favor 
of their recognition. He then proceeded to review his record in view of the events 
of the war. 

On March 14 the resolution of expulsion was disagreed to; yeas 11, nays 28. 



TITLE IV. 
TREASON DEFINED. 

The offense of treason is defined by the Constitution as follows : 

Treason against the United States shall consist only in levying war against them, or 
in adhering to their enemies, giving them aid and comfort. No person shall be con- 
victed of treason unless on the testimony of two witnesses to the same overt act or on 
confession in open court. 

In Ex parte Bollman (4 Cranch., 75), Chief Justice Marshall, in 
defining the offense of levying war against the United States, said: 

To constitute that specific crime war must be actually levied against the United 
States. However flagitious may be the crime of conspiring to subvert by force the 
government of our country, such conspiracy is not treason. To conspire to levy war, 
and actually to levy war, are distinct offenses. The first must be brought into open 
action by the assemblage of men for a purpose treasonable in itself, or the fact of 
levying war can not haA'e been committed. So far has this principle been carried, 
that, in a case reported by Ventris, and mentioned in some modem treatises on crim - 
inal law, it has been determined that the actual enlistment of men to serve against 
the Government does not amount to levying war. 

It is not the intention of the court to say that no individual can be guilty of this 
crime who has not appeared in arms against his country. On the contrary, if war be 
actually levied, that is, if a body of men be actually assembled for the purpose of 
effecting by force a treasonable purpose, all those who perform any part, however 
minute, or however remote from the scene of action, and who are actually leagued 
in the general conspiracy, are to be considered as traitors. But there must be an 
actual assembling of men for the treasonable purpose, to constitute a levying of war. 

Crimes so atrocious as those which have for their object the subversion by violence 
of those laws and those institutions which have been ordained in order to secure the 
peace and happiness of society, are not to escape punishment because they haA"e not 
ripened into treason. The wisdom of the legislature is competent to provide for the 
case; and the framers of our Constitution, who not only defined and limited the crime, 
but with jealous circumspection attempted to protect their limitation by providing 
that no person should be convicted of it, unless on the testimony of two witnesses to 
the same overt act, or on confession in open court, must have conceived it more safe 
that punishment in such cases should be ordained by general laws, formed upon 
deliberation, under the influence of no resentments, and without knowing on whom 
they were to operate, than that it should be inflicted under the influence of those 
passions which the occasion seldom fails to excite, and which a flexible definition of 
the crime, or a construction which would render it flexible, might bring into operation. 
It is, therefore, more safe as well as more consonant to the principles of our Constitu- 
tion, that the crime of treason should not be extended by construction to doubtful 
cases; and that crimes not clearly within the constitutional definition, should receive 
such pimishment as the legislature in its wisdom may provide. 

But at the present time war has actually been levied against the 
United States, and such being the case, is not a public officer who 
obstructs the recruiting of the United States Army ' ' actually leagued 
in the general conspiracy" ? 

In a charge to the grand jury during the Civil War relating to this 
offense, Judge Blatchford said (4 Blatchf., 518; Fed. Cas., No. 18270) : 

What overt acts, then, constitute treason? A mere conspiracy to subvert by force 
the Government, however flagitious the crime may be, is not treason. To conspire to 
levy war, and actually to levy war, are distinct offenses. If a body of people conspire 
and meditate an insurrection to resist or opoose the lawb of the United States by force, 
they are only guilty of a high misdemeanor; but if they proceed to carrj' such intention 
into execution by force, they are guilty of treason by levying war. In the language 
of Chief Justice Marshall in Ex parte Bolhnan (4 Cranch S (U. S.) 75, 126), "It is not 
the intention of the court to say that no individual can be guilty of this crime who 
has not appeared in arms against his countrj^ On the contrary, if war be actually 
le\ied- — that is, if a body of men be actually asseml^led for the purpose of effecting by 
force a treasonable purpose — all those who perform anj part, however minute or how- 

79 



80 SPEECH OF SENATOR EOBEKT M, LA FOLLETXE. 

ever remote from the scene of action, and who are actually leagued in the general 
conspiracy, are to be considered as traitors." 

As the court has already_ said to you, the comlaination and assemlilage of a 1)odyJof 
men with the design of seizing, and the actual seizing, of the forts and other public 
property in and near Charleston, S. C, and some other States is a levying of war 
against the United States. Consequently, any and every person who engaged therein 
is ])y the law regarded as levying war against the United States, and all who adhere 
to them are to be regarded as enemies; and all who give them aid and comfort, in 
South CaroUna or New York, or in any other portion of the United States, or else- 
where, come within the express pro^'isions of the first section of the act of April 30, 
1790, and are guilty of treason. 

What amounts to adhering to and giving aid and comfort to our enemies, it is some- 
what difficult in all cases to define : but certain it is that furnishing them with arms 
or munitions of war. -vessels, or other means of transportation, or any materials which 
will aid the traitors in carrj-ing out their traitorous purposes, ^\dth a knowledge that 
they are intended for such purposes, or inciting and encom'aging others to engage in 
or aid the traitors in any way, does come \\ithin the provisions of the act. And it 
is immaterial whether such acts are induced by sympathy with the rebellion, hos- 
tility to the Government, or a desire for gain. 

In a like charge, Judge Nelson (5 Blatchf., 549: Fed. Cas., 18271) 
said: 

Under the lust clause of the proAision — levying war against the United States — 
there can be no great difficulty in determining the facts and circumstances which 
establish the crime. There must be an actual levying of war. A consultation or 
conspii'acy to do so is not an overt act within the constitutional definition. 

There is more difficult}' in derermining what constitutes the overt act under the 
second clause — namely, adhering to the enemy, giving him aid and comfort. Ques- 
tions arising under this clause nmst depend "sery much upon the facts and circum- 
stances of each particular case. There are some acts of the citizen, in his relations 
with the enemy, which leave no room for doubt, such as giA'ing intelligence with 
intent to aid him in his acts of hostility, sending him provisions or money, furnish- 
ing arms or troops or munitions of war, surrendering a military post, etc., all with 
a like intent. These and kindred acts are overt acts of treason, by adhering to the 
enemy. 

Words, oral, written, or printed, however treasonable, seditious, or criminal of them- 
selves, do not constitute an overt act of treason within the definition of the crime. 
When spoken, written, or printed in relation to an act or acts which, if committed 
with a treasonable design, might constitute such overt act, they are admissible as 
evidence tending to characterize it and to show the intent with which the act was 
committed. They may also furnish some evidence of the act itself against the 
accused. This is the extent to which such publications may be used, either in find- 
ing a bill of indictment or on the trial of it. An attempt was made in the Parliament 
•of England during the reign of James II to make treasonable words the subject of 
this crime, but it" was resisted by the friends of constitutional liberty and defeated, 
and since that time it has not been renewed . 

Judge Leavitt said (1 Bond, 609; Fed. Cas., 18272): 

It would be a A'aiu effort to attempt to designate every act which, in its legal im- 
port, would be levjdng war against the GoA-ernment or giving aid and comfort to 
the public enemy after a war is actually begun. Under the first division of the con- 
stitutional definition of treason, there are some acts the treasonable character of which 
is apparent to the mental consciousness of everyone. To be employed in actual 
service in any army raised to oppose the Government in its action, or directly or in- 
directly to aid or assist in the leAying or embodying a military force for the subversion 
of the GoA'ernment, are plainh' acts of levying war, and involve the commission of 
the crime of treason in its most aggravated form. But the words referred to have a 
broader signification As remarked by Chief Justice Marshall in the trial of Burr, 
those who join the hostile army after the war is begun, are equally guilty of levj^ing 
war vvdthin the meaning of the Constitution and the act of Congress. That learned 
judge states the law in these words: "If a body of men be actually assembled for 
the purpose of effecting by force a treasonable purpose, all those who perform any 
part, however minute, or however remote from the scene of action, and who are in 
the general conspiracy, are to be considered as traitors." (Case No. 14(j9;i) 

But without stopping to specify more fully what acts may be understood as a duect 
levAing of war, I wiirnotice briefly what "are included in the words, "adhering to 
the" enemies of the United States, "giA'ing them aid and comfort." This language 
lea^-es no room to doubt that treason may be predicated of acts which are not a direct 



SPEECH OP SENATOR EOBEET M. LA FOLLETTE. 81' 

levying of war according to the construction of that phrase, as just indicated. The 
words in the definition, "adhering to their enemies," seem to have no special signifi- 
cance, as the substance is found in the words which follow — "giving them aid and 
comfort. " As before remarked, it is not an easy task to classify or specify the acts 
which bring a party within the range of this branch of the definition. In general, 
when war exists, any act clearly indicating a want of loyalty to the Government and 
sympathy with its enemies, and which, by fail" construction, is directly in further- 
ance of theii" hostile designs, gives them aid and comfort. Or, if this be the natural 
effect of the act, though prompted solely by the expectation of pecuniary gain, it is 
treasonable in its character. Without going into details on the subject, I will briefly 
notice some things clearly involving the guilt of treason. Thus, to sell to^ or proAddo 
arms or munitions of war, or military stores, or supplies, including food, clothing, etc., 
for the use of the enemy, is within the penalty of the statute. And to hire, sell, or 
furnish boats, railroad cars, or other means of transportation, or to advance money, oi" 
obtain credits, for the use and support of a hostile army, is treasonable. It is equally 
clear that the communication of intelligence to the enemy, by letter, telegraph, or 
otherwise, relating to the strength, movements, or position of the Army, is an act of 
treason. These acts, thus briefly noted, show unequivocally an adherence to the 
enemy and an unlawful purpose of giving him aid and comfort. 

it has been already noticed that to justify a conviction for treason, unless the crime 
is ccnfessed in open court, there must be the evidence of two witnesses to a,n overt 
ace. The plain meaning of the words ' ' overt act, ' ' as used in the Constitution and the 
statute, is an act of a character susceptible of clear proof, and not resting in mere infer- 
ence or conjecture. They were intended to exclude the possiblity of a conviction of 
the odious crime of treason, upon proof of facts which were only treasonable by con- 
struction or inference, or which have no better foundation than mere suspicion. In 
its benign caution on this subject, the law requires not only, proof of a treasonable act, 
but that it should be established by the oaths of two witnesses. Hence it will be 
obvious that however strong may be the grounds of suspicion or belief, that an indi- 
vidual is disloyal to his country or his Government, until his disloyalty is developed 
by some open and provable act, he is not legally guilty of the crime of treason. And 
it follows, also, that mere expressions of opinion indicative of sympathy with the public 
enemy, will not ordinarily involve the legal guilt of that crime. They may well 
justify a strong feeling of indignation against the individual, and the suspicion that 
he is, at heart, a traitor, but will not be a sufficient basis for his conviction in a court 
of law. Whether, on the principle of self-preservation in times of great public danger, 
the summary arrest of such a person, under the military authority of the Government, 
may not be both necessary and proper, is a diffei'ent question, not in any way con- 
nected with the discharge of your duties as grand jurors. There may be circumstances 
justifying the exercise of such a power as a military necessity. But the (Constitution 
and laws of the United States are your guides in the performance of your duties. 
You, as a grand jury, and this court, as a court of the Union, derive all their powers 
from this source. Neither can willfully ovei'leap the limits prescribed for its action 
without a sacrifice of integrity and of all claim to the respect and confidence of every 
right-minded American citizen. 

Judge Sprague, after referring to certain statutes enacted during 
the Civil War, said (2 Spr. 292; Fed. Cas. 18274): 

Previous to their enactment, any person might, by words or acts, stir up and incite 
others to rebellion, or actually enter into conspiracies, and take preparatory measures 
for the destruction of the Government, \\ithout being subject to any legal penalty. 
Those who were plotting and preparing treason were not compelled to secrecy or con- 
cealment. They were not driven to cc-llars or caverns, the appropriate scenes for such 
dark and nefarious machinations. But they were carried on in open day, in public 
buildings and halls of legislation. We have seen incitements to rebellion by everj- 
art that could mislead the mind or influence the passions. We have seen conspiracies 
in almost every foi'm. Even legislative bodies and public conventions have assem- 
bled for the purpose of devising plans and carrying out measures for the overthrow 
of the Government, and they have prosecuted their work by public ordinances and 
declarations, and made preparations for actual hostilities; and all this with legal 
impunity, there being no statute of the United States by which any one of these con- 
spirators could be arrested as a criminal. 

In an earlier charge the same judge said (2 Spr., 285; Fed. Cas., 

18277): 

Flagrant war being now carried on in other parts of the country, it becomes 
an important inquiry how far persons here, within your jurisdiction, may incur the 

51951—18- 6 



82 SPEECH OF SENATOR EOBERT M. LA. FOLLETTE. 

,guilt and he subject to the penalties of treason by cooperating \rith distant rebels. 
The law in that respect is this: If war is actually levied, all those who perform any 
part, however minute or however remote from the scene of action, and who are actu- 
ally leagued. in the general conspiracy are to be considered as traitors. Such part 
may be perforraed not only ]»y giving information or other direct aid to the rebels, but 
also by acts wiiich tend and are designed to defeat, obstruct, or weaken our own arms. 
If any .such offense should be presented for your investigation, I doubt not that you 
will without hesitation enforce this laAv as just and reasonable; for a seeming friend 
in New York or Massachusetts may, by various means, do more injury to our country, 
and more effectually aid its enemies, than he could by actually joining the rebel 
army; and while we are sending forth thousands of our friends and neighbors to the 
dangers of the field, to fight our battles and preserve our Government^ we can not 
permit their dangers to he increased and their lives to be sacrificed by the practices 
of traitors at home, who are enjoying the protection of our laws. 

In 1851 Judge Kane charged a grand jury regarding treason as 
foUows (2 Wall., Jr., 134; Fed. Cas., 18276): 

Treason against the United States is defined by the Constitution (Art. Ill, sec. 
3, cl. 1) to consist in '"levying war against them, or in adhering to their enemies, 
gi^•ing them aid and comfort." This definition is borrowed from the ancient laj"'' of 
England (St. 25 Edw. Ill, St. 5, c. 2). and its terms must be understood of course in 
the sense which they bore in that law and which obtained here when the Constitution 
was adopted. The expression "levying war," so regarded, embraces not merely 
that act of formal or declared war, but any combination forcibly to prevent or oppose 
the execution or enforcement of a provision of the Constitution or of a public statute 
if accompanied or followed by an act of forcible opposition in pursuance of such com- 
bination. * * * But it is not neee.ssary to prove that the individual accused 
was a direct, personal actor in the violence. If he was present, directing, aiding, 
abetting, counseling, or (Countenancing it, he is in law guilty of the forcible act. 
Nor is even hla personal presence indispensable. Though he be absent at the time 
of its actual perpetration, yet if he directed the act, devised or knowingly furnished 
the maans for carrying it into effect, instigating others to perform it, he shares their 
guilt. In treason there are m accessories. 

There has been, I fear, an erroneous impression on this subject among a portion 
of our people. If it has been thought safe to counsel and instigate others to acts 
of forcil:)le oppugnation to the provisions of a statute — to inflame the minds of the 
ignorant by appeals to passion and denunciations of the law as oppressive, unjust, 
revolting to the conscience, and not binding on the actions of men — to represent 
the Constitution of the land as a compact of iniquity which it were meritorious to 
violate or subvert — the mistake has been a grievous one; and they who have fallen 
into it may rejoice, if their appeals and their counsels have been hitherto without 
effect. The supremacy of the Constitution in all its provisions is at the very basis 
of our existence as a nation. He whose conscience or whose theories of political or 
indiAddual right forbid him to support and maintain it in its integrity may relieve 
himself from the duties of citizenship by divesting himself of its rights. But while 
he remains within our borders he is to remember that successfully to instigate treason 
is to commit it. 

It wiU be noticed from the foregoing review of the decisions that 
in order to constitute the crime of treason under the Constitution 
there must be an overt act. But, as Chief Justice Marshall said, 
after war is once declared ''all who perform any part, however 
minute or however remote from the scene of action, and who are 
actually leagued in the general conspiracy are to be considered as 
traitors." Seditious words uttered before war is actually declared 
may subject the speaker to well-merited censure and condemnation, 
but they are not treason under the Constitution, for no overt act 
has been performed. But when once war is waged, the overt act 
is committed, and from that time forward the same words assume 
an entirely different aspect, and he who utters them would seem 
to perform his part, however minute and however remote he may 
be from the scene of action, and this may constitute him a traitor. 

o 



iBRARY OF CONGRESS 



012 322 126 6 



